State v. Wiisanen, 90-0008-CR
| Decision Date | 05 September 1990 |
| Docket Number | No. 90-0008-CR,90-0008-CR |
| Citation | 158 Wis.2d 353,462 N.W.2d 551 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Richard C. WIISANEN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment of the circuit court for Eau Claire county: William O'Brien, Judge.
Circuit Court, Eau Claire County.
AFFIRMED.
Richard Wiisanen appeals his conviction on a charge of operating a motor vehicle while intoxicated (OWI), contrary to sec. 346.63(1)(a), Stats. Wiisanen contends that he was denied his constitutional right to a speedy trial and that the trial court erred by ruling that the initial dismissal of the state's complaint was without prejudice. This court concludes that Wiisanen failed to preserve for appeal the speedy trial issue by entering an Alford 1 plea of guilty to the OWI charge and that the initial dismissal of the state's complaint was, as a matter of law, without prejudice. The judgment of conviction is affirmed.
Wiisanen was charged on January 28, 1988, with a number of traffic offenses, including OWI. On that date, he was given field sobriety and Intoxilyzer tests, but was not jailed. He initially appeared in court on February 16. On May 19, Judge Frederick Henderson held a hearing on Wiisanen's motion to suppress, and the arresting officer did not appear to testify for the state. Judge Henderson then dismissed the charges against Wiisanen. No written order of dismissal was filed.
A second criminal complaint covering Wiisanen's January 28 conduct was filed on June 8. In a decision and order dated December 6, 1988, Judge Gregory Peterson found that Judge Henderson had dismissed the first complaint with prejudice, but then dismissed the second complaint without prejudice "so that the charges may be pursued again if the judge in the prior case should determine that that dismissal was without prejudice after all."
On December 9, 1988, the state filed a motion to dismiss the first complaint without prejudice. In a June 30, 1989 opinion, Judge William O'Brien granted the state's motion.
A third complaint was filed on August 10, 1989. On November 7, Wiisanen entered an Alford guilty plea to the OWI charge. Wiisanen's counsel informed the court that Wiisanen intended that his plea reserve his rights to appeal on all issues raised before the trial court.
Wiisanen raises only one issue in his brief-in-chief. He argues that a delay of nearly twenty-two months between the issuance of charges and the trial is presumptively prejudicial and denies a defendant his constitutional right to a speedy trial.
A plea of guilty, when voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses including claims of violations of constitutional rights prior to the plea. Mack v. State, 93 Wis.2d 287, 293, 286 N.W.2d 563, 566 (1980). A plea of no contest also constitutes such a waiver. State v. Princess Cinema, 96 Wis.2d 646, 651, 292 N.W.2d 807, 810 (1980). An Alford plea has the same effect. State v. Olson, 127 Wis.2d 412, 418-19 n. 4, 380 N.W.2d 375, 378 n. 4 (Ct.App.1985). The question of a speedy trial is an issue subject to the waiver rule. Foster v. State, 70 Wis.2d 12, 20-21, 233 N.W.2d 411, 415-16 (1975). Even the express reservation of the right to appeal a prior ruling will not survive a guilty plea in respect to a matter that clearly would be waived absent the reservation. 2 Riekkoff, 112 Wis.2d at 128-29, 332 N.W.2d at 749. Consequently, Wiisanen can no longer raise the speedy trial issue on appeal because he entered an Alford plea to the OWI charge.
Wiisanen raises a second issue in his reply brief. He contends that the initial dismissal of his case was with prejudice and that, therefore, the state was barred from recharging him. An argument raised for the first time in a reply brief is not as a general rule considered on appeal. Schaeffer v. State Personnel Comm'n, 150 Wis.2d 132, 144, 441 N.W.2d 292, 297 (Ct.App.1989) (citing In re Bilsie, 100 Wis.2d 342, 346 n. 2, 302 N.W.2d 508, 512 n. 2 (Ct.App.1981)). This court will depart from the general rule here, however, as Wiisanen's contention that the dismissal of the first complaint was with prejudice amounts to a constitutional claim involving double jeopardy issues.
A plea of no contest does not waive the right to raise issues of double jeopardy. State v. Hartnek, 146 Wis.2d 188, 192 n. 2, 430 N.W.2d 361, 362 n. 2 (Ct.App.1988); see also State v. Morris, 108 Wis.2d 282, 284 n. 2, 322 N.W.2d 264, 265 n. 2 (1982). The same analysis would apply to an Alford plea.
The trial court ruled as a matter of law that the dismissal of the first complaint was without prejudice. The question of whether facts in a particular case fulfill a particular legal standard is a question of law. State v. Trudeau, 139 Wis.2d 91, 103, 408 N.W.2d 337, 342 (1987). When reviewing questions of law, an appellate court owes no deference to the trial court. Mentzel v. City of Oshkosh, 146 Wis.2d 804, 808, 432 N.W.2d 609, 611 (Ct.App.1988).
Trial courts do not possess the power to dismiss a criminal case with prejudice prior to the attachment of jeopardy except in the case of a violation of the constitutional right to a speedy trial. State v. Braunsdorf, 98 Wis.2d 569, 586, 297 N.W.2d 808, 816 (1980). 3 Jeopardy attaches: (1) in a trial to the court without a jury when a witness is sworn; or (2) in a jury trial when the selection of the jury has been completed and the jury sworn. Section 972.07, Stats. Because Wiisanen's first complaint was dismissed at a pretrial motion hearing, the dismissal occurred prior to the attachment of jeopardy.
Our sole remaining inquiry, then, under Braunsdorf, is whether this case involves the violation of Wiisanen's constitutional right to a speedy trial. Ironically, this court's review of the dismissal with or without prejudice issue requires a review of the speedy trial issue waived by Wiisanen's Alford plea. When focusing on the Braunsdorf rule, however, this court does not direct its inquiry to the reasonableness of the time lapse from the date of the offense until the date of the Alford plea, as argued by the state. Instead, Braunsdorf requires only that we determine if a possible violation of Wiisanen's right to a speedy trial existed at the time the trial court dismissed the first complaint, giving the trial court the power to dismiss that complaint with prejudice. See id. at 574-75, 297 N.W.2d at 811 (emphasis added).
This court's first inquiry is directed toward the time lapse between the date of the offense on January 28 and the date of the initial appearance on February 16. The trial court found as fact in its ruling on the issue of whether the first complaint had been dismissed with prejudice that Wiisanen had not been incarcerated during the relevant period. This finding is not challenged on appeal.
Delay prior to arrest or indictment may give rise to fifth amendment due process claims or claims based on the applicable statute of limitations, but any pre-arrest delay does not implicate the sixth amendment right to a speedy trial. United States v. MacDonald, 456 U.S. 1, 6-7 (1982). The speedy trial provision of our criminal statutes states that "[i]n misdemeanor actions trial shall commence within 60 days from the date of the defendant's initial appearance in court." Section 971.10(1), Stats. (emphasis added). Section 939.74(1), Stats., is the applicable statute of limitations that provides that the state is allowed three years after the date of commission of a misdemeanor to issue a summons or file an information. Wiisanen's initial appearance occurred approximately nineteen days after the date of his offense.
Wiisanen's only remaining argument with respect to the period of pre-arrest is that it represents a due process violation. See MacDonald, 456 U.S. at 6-7. In order to establish a due process violation during pre-arrest delay, the defendant must demonstrate actual prejudice. United States v. Marion, 404 U.S. 307, 323-24 (1971); see also State v. Rogers, 70 Wis.2d 160, 165, 233 N.W.2d 480, 483 (1975). The appellate record is devoid of any suggestion of actual prejudice to Wiisanen by a delay of less than twenty days between the...
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