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Defendant forfeited competency objection; had no right to counsel on OWI 2nd mischarged as OWI 1st

St. Croix County v. Kimberly L. Severson, 2017AP1111, 11/13/18, District 3, (i-judge opinion, ineligible for publication); case activity (including briefs)

This is a City of Eau Claire v. Booth redux. In 2001 Severson was charged with OWI 1st in Eau Claire County and convicted of a separate OWI 1st in St. Croix County. Had St. Croix conviction been properly charged as an OWI 2nd, Severson would have had a constitutional right to counsel. But te court of appeals, applying Booth, held that Severson’s failure to object to the St. Croix County circuit court’s lack of competency to proceed to judgment forfeited that issue for appeal.

We won’t revisit the difference between a circuit court’s subject matter jurisdiction and a circuit court’s competence to exercise its subject matter jurisdiction. You can read our post on City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738 for that. Mindful of the distinction, the court of appeals here held:

¶10 We conclude that Severson forfeited her ability to challenge the circuit court’s competency in entering a second first-offense OWI conviction against her. As a threshold matter, we agree with Severson that the court lacked competency to convict her twice of a first-offense OWI. Booth’s holding is unequivocal in that regard, and the County does not dispute as much.

¶11 However, we part ways with Severson and agree with the circuit court that the striking similarities between this case and Booth warrant the same outcome. Like Booth, Severson was charged incorrectly with a second first offense OWI. Further, Severson similarly waited until new OWI charges were pending against her before electing to challenge the court’s competency for the prior OWI. Finally, Severson’s sixteen-year delay in objecting to the court’s competency is a similar “considerable delay in raising the issue” as Booth’s twenty-two year delay. Id. On these facts, Severson forfeited her objection to the court’s lack of competency to enter a second first-offense OWI conviction because she filed her objection too late. Therefore, we conclude the circuit court properly denied Severson’s motion to vacate.

The court of appeals agreed that Severson would have a right to counsel for an OWI 2nd. However, St. Croix County mistakenly charged her with an OWI 1st punishable by a forfeiture rather than incarceration. However, the right to counsel is determined by the defendant’s actual charge.  See State v. Novak, 107 Wis. 2d 31, 41, 318 N.W.2d 364 (1982). Thus Severson not entitled to counsel for the St. Croix OWI 1st, which should have been charged as a 2nd.  Opinion ¶¶8-9.

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