State v. Wideman, 95-0852-CR

Citation206 Wis.2d 91,556 N.W.2d 737
Decision Date20 December 1996
Docket NumberNo. 95-0852-CR,95-0852-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Daniel J. WIDEMAN, Defendant-Appellant-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

For the defendant-appellant-petitioner there were briefs and oral argument by Ruth S. Downs, Assistant State Public Defender.

For the plaintiff-respondent the cause was argued by Jerome S. Schmidt, Assistant Attorney General, with whom on the brief was James E. Doyle

SHIRLEY S. ABRAHAMSON, Chief Justice.

This is a review of an unpublished decision of the court of appeals, State v. Wideman, No. 95-0852-CR, unpublished slip op., 1995 WL 511332 (Wis.Ct.App. Aug. 30, 1995), affirming a judgment and order of the circuit court for Winnebago County, William E. Crane and Thomas S. Williams, Judges. 1 The defendant, Daniel J. Wideman, was convicted after a jury trial of operating a motor vehicle while intoxicated (OWI) contrary to Wis. Stat. § 346.63(1)(a) (1991-1992). 2 The circuit court sentenced the defendant as a third-time OWI offender pursuant to Wis. Stat. § 346.65(2)(c), the OWI penalty enhancer. 3 The circuit court denied the defendant's motion to vacate the sentence. 4 The court of appeals affirmed the judgment and order of the circuit court. We affirm the decision of the court of appeals.

Two issues of law are presented in this case involving a not guilty plea. We decide these issues independently, benefiting from the analyses of the circuit court and court of appeals: (1) Must the State establish prior suspensions, convictions or revocations under § 346.65(2) in accordance with § 973.12(1)? (2) Is the record prior to the imposition of the sentence in the case at bar, involving a not guilty plea, sufficient to establish the prior suspensions, convictions or revocations under § 346.65(2)(c)? 5 Hereafter we use the phrases "prior offense" or "prior offenses" to refer to suspensions, convictions or revocations described in Wis. Stat. § 343.307(1) which subject a person to the enhanced penalties set forth in § 346.65(2).

The parties do not dispute, and we agree, that the State bears the burden of establishing prior offenses as the basis for the imposition of enhanced penalties under § 346.65(2). We hold that the requirements for establishing prior offenses set forth in § 973.12(1) are not applicable to the penalty enhancement provisions of § 346.65(2). 6 As we explain below, other provisions are relevant to establishing prior offenses unders 346.65(2).

If the accused or defense counsel challenges the existence or applicability of a prior offense, or asserts a lack of information or remains silent about a prior offense, the State must establish the prior offenses for the imposition of the enhanced penalties of § 346.65(2) by presenting "certified copies of conviction or other competent proof ... before sentencing." State v. McAllister, 107 Wis.2d 532, 539, 319 N.W.2d 865 (1982).

We conclude that the record in this case as of the imposition of sentence is sufficient to establish the prior offenses so that the circuit court could impose the penalty enhancer. Accordingly we affirm the court of appeals' decision affirming the circuit court's judgment of conviction and the circuit court's order denying the defendant's motion for postconviction relief.

I.

For purposes of this review the facts are not in dispute. The defendant was arrested in April 1994 and charged with operating a motor vehicle while intoxicated. The complaint alleged that the charged offense was the defendant's third offense.

A criminal complaint was supported by a police investigator's affidavit which attested, in pertinent part:

Complainant further states that he has inspected a teletype of the defendant's driving record received from the State of Wisconsin, Department of Transportation, Division of Motor Vehicles, that your complainant believes the teletype record to be reliable and accurate based upon past professional use of the information, that said teletype record shows that the defendant has been revoked for violation of section 343.305 or convicted for violation of section 346.63(1), Wis. Stats., or local ordinances in conformity with section 346.63(1) two (2) times in the past five years.

The defendant was identified in the complaint by his full name and date of birth. The complaint alleged violation of Wis. Stat. § 346.63(1)(a) and specified the penalty provisions for "a 3rd conviction of this offense" pursuant to Wis. Stat. § 346.65(2).

At the defendant's initial appearance, the circuit court furnished the complaint to the defendant, informed the defendant that "[t]his would make this a third conviction within five years if [he was] convicted," and pointed out the mandatory minimum and maximum penalties prescribed by the enhanced penalty statute. In response to the circuit court's inquiry, the defendant, unrepresented by counsel, stated that he understood. The defendant obtained counsel after his initial appearance.

When the jury returned a verdict of guilty, the circuit court entered judgment and immediately proceeded to sentencing.

At sentencing, the circuit court stated three times that this was the defendant's third conviction and set out the proper penalty range for a third offense under § 346.65(2). Defense counsel asked the circuit court to deviate from the sentencing guidelines and asked the circuit court to impose "the minimum period of incarceration as well as the minimum fines."

When the circuit court inquired of defense counsel whether the "state of the record" indicated that this was a third conviction on the offense of operating while intoxicated, defense counsel responded affirmatively. The defendant declined to speak in response to the circuit court's invitation to exercise his right of allocution before sentence was pronounced.

The circuit court sentenced the defendant to a fine and 60 days' incarceration, consistent with the third offense provisions of the OWI penalty enhancement statute, § 346.65(2)(c).

With new counsel, the defendant brought a postconviction motion seeking to vacate the enhanced penalty and to impose a sentence consistent with a first OWI offense, 7 arguing that the defendant had not admitted and the State had failed to prove the prior offenses. The defendant urged that because of an inadequate record he should be sentenced as a first offender. At the hearing on the defendant's motion the State, over the defendant's objection, presented a certified copy of the defendant's driving record.

The circuit court denied the defendant's motion for postconviction relief. The circuit court held that even without the certified copy of the defendant's driving record, the record was sufficient for the court to find that the defendant had two prior offenses within the previous five years. Specifically, the circuit court referred to the allegations in the complaint and the defendant's failure to object any time prior to the imposition of sentence.

The court of appeals affirmed the judgment and order of the circuit court.

II.

Section 346.65(2) provides for escalating penalties for multiple offenses. Anyone violating § 346.63(1) as a first offense forfeits not less than $150 nor more than $300. For anyone violating § 346.63(1) as a second offense under § 343.307(1) in a period of five years, the statute prescribes a fine of not less than $300 nor more than $1000 and imprisonment for not less than five days nor more than six months. For anyone violating § 346.63(1) as a third § 343.307(1) offense in a period of five years, the statute prescribes a fine of not less than $600 nor more than $2000 and imprisonment for not less than 30 days nor more than one year in the county jail. The statute provides graduated penalties for anyone violating § 346.63(1) for the fourth, fifth and subsequent offenses within a five-year period. 8 The graduated penalty structure of § 346.65(2) has been described as "nothing more than a penalty enhancer similar to a repeater statute which does not in any way alter the nature of the substantive offense." McAllister, 107 Wis.2d at 535, 319 N.W.2d 865.

The enhanced penalty provisions of Wis. Stat. § 346.65(2) do not address the manner by which the State is to establish prior offenses at sentencing. The defendant urges the court to apply the requirements of Wis. Stat. § 973.12(1), the general repeat offender statute, 9 to § 346.65(2).

Section 973.12(1) provides that when a person charged with a crime will be a repeater under § 939.62 10 if convicted, a prior conviction may be alleged in the complaint, the indictment or information or amendments at any time before or at arraignment, and before acceptance of any plea; the accused shall be subject to sentence as a repeater if the prior convictions are admitted by the accused or proved by the State. According to § 973.12(1), an official report shall be prima facie evidence of any conviction or sentence therein reported.

The defendant makes the following arguments for applying § 973.12(1), the general repeater statute, to § 346.65(2), the OWI penalty enhancer: (1) the legislature has not evidenced any intention of mandating lesser proof requirements for OWI repeaters than are mandated under the general repeater provisions of § 973.12(1); (2) public policy does not support any lesser proof requirements for OWI repeaters compared to repeaters under § 972.12(1); and (3) application of § 973.12(1) requirements would impose no more than a minimal burden on the State.

We are not persuaded by the defendant's arguments that § 973.12(1) is applicable to § 346.65(2). First and foremost, the legislature has specifically precluded application of § 973.12(1) to § 346.65(2). Section 939.62(3)(a), which defines a repeater for purposes of § 973.12(1), expressly excludes from the definition of repeater and thus from § 973.12(1) "motor vehicle offenses under chs. 341 to 349." 11

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