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OWI – Enhancer – Collateral Attack on OWI-1st

State v. Joseph J. Hammill, 2006 WI App 128. For Hammill: Patrick J. Stangl

Issue/Holding:

¶15      Hammill argues the circuit court erred by counting a Village of Cameron conviction. Hammill was arrested in that case for OWI-first on January 1, 1991. On January 28, Hammill was arrested for OWI in Eau Claire, which was also charged as a first offense. Hammill pled to both OWI-first cases on the same day, with the Eau Claire conviction occurring first. Hammill asserts that the Village of Cameron charge was an OWI-second and that a municipal court does not have subject matter jurisdiction over a second or subsequent OWI charge, citing County of Walworth v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982). Hammill then contends that, because the court lacked subject matter jurisdiction, the conviction is a nullity and cannot be counted for penalty enhancement purposes in this case.

¶16      The State responds that Hammill’s challenge to the Village of Cameron conviction is barred by Hahn. … Because Hammill’s challenge to the Village of Cameron conviction is not grounded on an alleged violation of his right to counsel, the State argues, Hammill may not collaterally attack the Village of Cameron conviction based on a lack of subject matter jurisdiction.

¶17      Hammill replies that Hahn did not specifically address whether a void judgment could be used to enhance a sentence. We disagree. Hahn is a broad, bright-line rule. Since Hammill’s challenge to his Village of Cameron conviction is not based on the denial of his right to counsel, the challenge is barred by Hahn.

Could Hammill have brought an independent challenge to his Village conviction under § 806.07(1)(d)? That might depend on 1) whether the judgment was “void” and if so 2) whether the § 806.07(2) “reasonable time” limitation for bringing the motion allows you to wait 12 years before challenging a void judgment. The answer to the latter question seems settled, see e.g., Neylan v. Vorwald, 124 Wis.2d 85, 100, 368 N.W.2d 648 (1985) (“Section 806.07(2), Stats., requiring motions to vacate orders or judgments to be brought in a “reasonable time” does not apply to void judgments.”). Let me quickly add the equivalent of a strongly worded consumer act warning: I haven’t shepardized the case or otherwise researched the point, so you will definitely want to do your own follow-up; sound advice any way, under any circumstances. The 1st question thus seems to be the decisive one—on the merits, someone with expertise in this area will have to weigh in; as a procedural matter, though, and assuming Neylan applies, it’s safe to say that if a challenge is to be made, it would have to be as an independent § 806.07 attack in the OWI-1st proceeding. Separate, tangential point: it might be worth recalling that the Hahnrule has similarly been applied to challenges to a prior refusal used as an enhancer, State v. Keith S. Krause, 2006 WI App 43, ¶12 (no right to counsel in refusal proceeding, therefore Hahn precludes collateral attack within enhanced proceeding).

 

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