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No IAC for implying prior OWIs; stipulation to three priors valid; no issue preclusion on number of priors

State v. Bruce T. Henningfield, 2015AP1824-CR, 3/15/17 (not recommended for publication); case activity (including briefs)

Bruce Henningfield was convicted by a jury of OWI and PAC counts, and was sentenced on the OWI as a tenth or subsequent offense. He raises three issues related to his prior convictions; the court rejects them all.

Henningfield, outside the presence of the jury and on counsel’s advice, stipulated to having three prior convictions, such that his PAC is .02, rather than .08. The point of such a stipulation is, of course, to keep the state from presenting possibly prejudicial evidence about those priors. Henningfield first argues that his counsel rendered ineffective assistance when, in his opening statement, he nevertheless implied to the jury that the .02 limit was due to prior offenses.

The court addresses only the prejudice prong of Strickland, and finds prejudice lacking because (1) the jury would likely have deduced the prior offenses anyway and (2) given the incredibility of Henningfield’s account (in which he got drunk only after crashing his truck), acknowledging his prior convictions could not have affected whether the jury believed it. (¶¶36-42).

Henningfield next claims that his stipulation to the three priors (known as an Alexander stipulation) was invalid, because he did not knowingly, voluntarily and intelligently waive his right to a jury trial on this issue. The court of appeals does not address the argument, holding that any such error would be harmless, since the PAC count was dismissed after the trial, and the OWI  verdict did not depend on the existence of any priors. (¶44).

Henningfield finally submits that recent plea, in another case, to OWI-5th precluded the state from charging him as a 10th offender. The court of appeals, following Mrozek v. Intra Fin. Corp., 2005 WI 73, 281 Wis. 2d 448, 699 N.W.2d 54, holds that the plea does not satisfy the requirement that the issue at stake have been “actually litigated” in the prior proceeding. (¶¶47-48).

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