Steeno v. State

• Decision Date: 31 October 1978
• Docket Number: 76-660-CR,Nos. 76-388-C,s. 76-388-C
• Parties: , 2 A.L.R.4th 608 Randall J. STEENO, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. Kenneth W. STUBBENDICK, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.
• Court: Wisconsin Supreme Court

Page 396

271 N.W.2d 396

85 Wis.2d 663, 2 A.L.R.4th 608

Randall J. STEENO, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.

Kenneth W. STUBBENDICK, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.

Nos. 76-388-CR, 76-660-CR.

Supreme Court of Wisconsin.

Submitted on Briefs, Oct. 4, 1978.

Decided Oct. 31, 1978.

Steeno is before this court by writ of error taken to review a judgment of conviction entered in the circuit court of Brown County on January 3, 1977, the Hon. Robert J. Parins presiding, affirming the denial of Steeno's post-conviction motion as entered in the Brown County county court on October 12, 1976, the Hon. John C. Jaekels presiding.

Howard B. Eisenberg, State Public Defender, submitted brief for plaintiffs in error.

Bronson C. La Follette, Atty. Gen., and Nadim Sahar, Asst. Atty. Gen., submitted brief for defendant in error.

COFFEY, Justice.

Steeno was convicted on August 24, 1976 for being in violation of sec. 343.44(2), Stats. (1975). The conviction was his third under that statute and he was accordingly sentenced to one year in the Brown County jail pursuant to the mandatory sentencing provisions of the statute. Steeno filed a post-conviction motion pursuant to sec. 974.06, Stats., alleging the one year mandatory imprisonment provision under sec. 343.44(2), Stats., constituted cruel and unusual punishment contrary to the Eighth Amendment of the United States Constitution and art. I, sec. 6 of the Wisconsin Constitution. Steeno's post-conviction motion was denied, the county court noting that while the statute may be harsh, the constitutional issue should be decided by an appellate court. On appeal to the circuit court, the county court's denial of the motion was affirmed.

By an order of this court dated June 28, 1977 the Stubbendick case was consolidated with Steeno's appeal. Factually, in all matters of legal significance, Stubbendick is identical except that the case arises out of the Rock County Court, the Hon. Edwin C. Dahlberg presiding; the judgment of conviction affirmed by the Hon. Arthur L. Luebke, Circuit Judge presiding.

Issue:

Whether the one year mandatory imprisonment provision of sec. 343.44(2), Stats., for persons convicted of a third or subsequent violation of this statute, is unconstitutional as constituting cruel and unusual punishment?

This appeal challenges sec. 343.44(2), Stats. (1975) on the constitutional grounds that the mandatory one year imprisonment provided in the statute for the third conviction of driving after license revocation constitutes cruel and unusual punishment. The statute is now amended, ¹ but at the time of this appeal, read as follows:

"343.44(2) Any person violating this section may be fined not less than $100 nor more than $400 and shall be imprisoned not less than 10 days nor more than one year in the county jail, except that if a person violates this section after having had his operating privilege revoked because of a conviction of any of the offenses mentioned in s. 343.31, he shall be imprisoned not less than 10 days nor more than one year in the county jail for the first violation of this section and shall be imprisoned not less than 90 days nor more than one year in the county jail for the 2nd such violation and shall be imprisoned for one year in the county jail for the 3rd and each subsequent violation. Refusal to accept or failure to receive an order of revocation or suspension mailed by 1st class mail to such person's last-known address shall not be a defense to the charge of driving after revocation or suspension. If such person has changed his address and fails to notify the division as required in s. 343.22 then failure to receive notice of revocation or suspension shall not be a defense to the charge of driving after revocation or suspension."

There have been two previous constitutional challenges brought against this statute. The first was State v. Duffy, 54 Wis.2d 61, 194 N.W.2d 624 (1972), followed by the recent case of State v. Sittig, 75 Wis.2d 497, 249 N.W.2d 770 (1977). In both cases the statute was found constitutionally sound against equal protection challenges. The rationales of Duffy and Sittig merit consideration in the review of this appeal.

The basic contention in State v. Duffy was that sec. 343.44(2), Stats. (1965) ² constituted a denial of equal protection as the statutory construction of "shall be imprisoned" did not permit the granting of probation for the convicted offender. The court's equal protection analysis found that the class of persons who drive after revocation constituted neither an inherently suspect classification nor was the classification irrational or arbitrary. State v. Duffy, supra 54 Wis.2d at 66, 194 N.W.2d 624. The court looked to the statute's underlying legislative policy in rejecting the proposition that the classification was irrational or arbitrary:

"SECTION 1. STATEMENT OF POLICY. In view of the immensity of the state's traffic problem, and, if not acted on, its certainty to increase, the legislature recognizes that new controls are necessary. But it also recognizes the folly of providing new penalties and controls when existing laws are not enforced. It is therefore declared that the people of the state of Wisconsin acting through their chosen representatives determine to reduce the motor vehicle accident rate by rigid enforcement of all traffic safety laws, and by this act traffic laws of this state and local ordinances enacted pursuant thereto, vigorously. The gravity of the problem, and the devastating power of the machine no longer permits countenance of the myriad excuses of careless drivers which were, in an earlier day, tiresome, but which have now become lethal." State v. Duffy, supra at 66, 194 N.W.2d at 626. (Legislative Note: ch. 292, Laws of 1967).

Having found a rational basis for the classification the court reaffirmed the concept that it is within the legislative province "to determine the penalty for the particular evil sought to be remedied." Id. at 66-67, 194 N.W.2d at 627.

In State v. Sittig, supra, the court found the mandatory imprisonment provision not to constitute a violation of the doctrine of separation of powers. The court emphasized that while criminal sentencing is an exclusive function of the court, there is no inherent power in the judiciary to determine the nature of the punishment and it would be a judicial usurpation to stay or suspend a criminal sentence in the absence of statutory authority. State v. Sittig, supra 75 Wis.2d at 500, 249 N.W.2d 770. The equal protection challenge was again raised and rejected, the court stating:

"In State v. Duffy, supra, this court held that the mandatory sentencing provision of sec. 343.44(2), Stats., does not deny equal protection to those persons sentenced thereunder. Defendant's argument that statistics demonstrate the crime of operating a vehicle after revocation of a license is not a contributor to the high rate of automobile accidents ignores the fact that those who commit this offense have had their licenses revoked for the reason that they have repeatedly committed the types of violations which are among the greatest contributing circumstances. Here, the defendant's record of violations, which have resulted in revocation, contains numerous violations, including speeding, reckless driving, driving under the influence of alcohol, attempting to elude an officer, and more. Thus, it is obvious the mandatory sentencing provision of sec. 343.44(2) does not represent an unjustifiable public policy, and thus does not deny equal protection, for its purpose is to decrease automobile accidents and injuries by imposing a fair penalty upon those who have shown they are most likely to cause these accidents." State v. Sittig, supra at 501, 249 N.W.2d at 772.

While the issue raised in this appeal differs from the equal protection challenges in Duffy and Sittig, the arguments offered to support the cruel and unusual punishment contention are nearly identical as in the earlier cases. These arguments will once again be reviewed, but this time by applying the legal test for determining whether a criminal sentence constitutes cruel and unusual punishment. The test is whether the sentence is:

". . . so excessive and unusual, and so disproportionate to the offense committed, as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstances." State v. Pratt, 36 Wis.2d 312, 322, 153 N.W.2d 18, 22 (1967). See also: Hanson v. State, 48 Wis.2d 203, 206, 179 N.W.2d 909 (1970).

The following is also instructive as to Eighth Amendment considerations:

"The primary purpose of that clause has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes; the nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment imposed. See, E. g., Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910)." Powell v. Texas, 392 U.S. 514, 531-32, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 (1968). ³

The defendant claims that it is shocking to the public conscience that upon a third conviction for an offense to sec. 343.44(2) that a court has no choice but to imprison the offender for one year. The defendant argues that sec. 343.44(2) is "unique" as one of the few statutes in this state which requires mandatory imprisonment as distinguished from mandatory sentencing. ⁴ In distinguishing mandatory imprisonment and mandatory sentencing, the defendant claims it to be shocking that while sentencing is mandatory for first degree murder, sec. 940.01, Stats. (1975) provided for judicial discretion in permitting the granting of probation and the execution of the sentence...