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Felony OWI with a minor passenger is an unclassified felony

State v. James A. Culver, 2018AP799-CR, District 4, 7/25/19 (not recommended for publication); case activity (including briefs)

Back in 2008 Culver was convicted and sentenced for OWI, fifth offense, with a minor in the car, which doubles the minimum and maximum penalties, § 346.65(2)(f). Now that his extended supervision (ES) is being revoked he challenges the length of the ES term originally imposed. He argues the presence of a minor is a penalty enhancer, which lengthens the term of initial confinement but not the term of ES, see § 973.01(2)(c)1. and State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24. No, says the court of appeals, under State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 NW.2d 872, OWI with a minor passenger is an unclassified felony, so the term of ES is increased, too.

¶23     The primary issue in Jackson was how to apply penalty enhancers to unclassified felonies when calculating the maximum term of confinement under Truth-in-Sentencing. See Jackson, 270 Wis. 2d 113, ¶2. However, the Jackson decision contains a footnote stating that OWI with a minor passenger, third or fourth offense, is an unclassified felony. See id., ¶37 n.8 (“Under TIS-II, only a few unclassified felonies remain. These include operating an automobile while intoxicated with a minor passenger (third or fourth offense), Wis. Stat. § 346.65(2)(f) (2001-02) ….”). We are unable to discern any reason why this footnote does not control here.

¶24     It is not apparent to us why the Jackson footnote includes the “third or fourth offense” parenthetical. But we perceive no possible reason why the application of Wis. Stat. § 346.65(2)(f) to a fifth offense would be the application of an enhancer to a classified crime, but the application of § 346.65(2)(f) to a third or fourth offense would be an unclassified crime. At the time of Jackson, as in 2006, and today for that matter, the subsections in § 346.65(2) specifying penalties based on the number of prior convictions provide no apparent basis to distinguish a third offense or a fourth offense from a second offense or a fifth offense for purposes of deciding whether the crimes are classified or unclassified.

¶25     We readily acknowledge that there was no dispute in Jackson as to whether Wis. Stat. § 346.65(2)(f) defined an unclassified crime or, instead, was a penalty enhancer applied to an underlying classified crime. However, this court may not dismiss a statement from an opinion by our supreme court on the ground that the statement is dictum. See Zarder v. Humana Ins. Co., 2010 WI 35, ¶¶53-58, 324 Wis. 2d 325, 782 N.W.2d 682 (“[T]he court of appeals may not dismiss a statement from an opinion by [the supreme] court by concluding that it is dictum.”).

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