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Record as a whole supplied “competent proof” of prior OWI conviction

State v. Mendell Stokes, 2015AP1335-CR, District 2, 11/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Applying State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), the court of appeals holds the record provided “competent proof” that Stokes was operating after revocation for a prior OWI offense and, thus, was subject to criminal penalties instead of a civil forfeiture, § 343.44(1)(b) and (2)(ar)2.

Spaeth held that when the state is seeking an enhanced penalty for OAR based on the defendant’s prior OAR convictions, the criminal complaint’s allegation of the prior convictions isn’t enough by itself to prove the prior convictions. Instead, there must be other “competent proof” consisting of either: 1) an admission by the defendant or defense counsel; 2) copies of prior judgments of conviction of OAR; or 3) a teletype of the defendant’s DOT driving record. 206 Wis. 2d at 148-53. Stokes claims the proof of his prior OWI was insufficient under Spaeth because the only evidence for the conviction was in the complaint, but the court of appeals rejects the claim.

First, the court reads Spaeth‘s “competent proof” rule in a limited way, as applying only when the enhanced penalty is being sought based on the defendant’s multiple prior OAR convictions. (¶¶7-11). To justify this reading, the court notes that in Spaeth the state was alleging the defendant was a fifth-time offender, and cites Spaeth‘s reasoning that it was not relying solely on the complaint because of the potential for error created by applying the complex OAR statutes to the defendant’s driving record and then transcribing the information into the complaint. 206 Wis. 2d at 154. By contrast, “here we are dealing with one prior OWI conviction, not serial OAR convictions coupled with the complexity of the OAR statutes, which the Spaeth court so heavily emphasized as the foundation for its decision.” (¶9). Thus, the court says, the criminal complaint, which clearly alleged Stokes was revoked on a certain date for an alcohol-related offense, should be enough by itself to prove the prior conviction. (¶11).

Lest it be seen as modifying or avoiding Spaeth, however, the court gives a separate reason for its decision—namely, there was more to rely on than the criminal complaint alone:

¶12     …. At the plea hearing, Stokes acknowledged reviewing the complaint. When the court asked him, “Do you understand that I will use that Criminal Complaint as a factual basis for a finding of guilt,” Stokes responded, “Yes, sir.” While this is not an admission to the accuracy of everything in the complaint, most specifically that a prior OWI charge was the basis for the revocation of his license, it certainly was a ready-made opportunity for Stokes or his counsel to clarify if there were any significant inaccuracies in the complaint. They did not do so. …. Stokes pled no contest … and when the court asked him if he understood “that a ‘no contest’ plea means that you do not contest the State’s ability to prove the facts necessary to constitute the crime,” Stokes responded, “Yes, sir.” This provided another obvious opportunity during which neither Stokes nor counsel spoke up to suggest any inaccuracies in the complaint or any deficiencies in the State’s ability to show what it needed to show for the crime or penalty enhancement.

¶13    At the sentencing, which immediately followed the plea, Stokes’[s] November 2011 OWI conviction—which provided the foundation for the revocation of Stokes’[s] license—was front and center before the parties and the court. The prosecutor’s first and only comments at sentencing were: “[T]he defendant’s OWI conviction was from November of 2011 and the revocation of his license from that conviction was still in effect at the time of this incident. Thank you.” The court turned to Stokes’[s] counsel next. Although this was the most obvious time and opportunity for counsel to bring to the court’s attention any error in the complaint or the prosecutor’s comments regarding the prior OWI conviction being the basis for Stokes’[s] revocation, counsel gave no hint of any inaccuracies. Instead, during the following colloquy, counsel tacitly confirmed that the revocation was based upon Stokes’[s] prior OWI conviction that had just been referenced by the prosecutor:

Court: Well, you were convicted of Operating While Intoxicated and then after that

Counsel: Not intoxicated.

Court: What’s that?

Counsel: Oh, I thought you meant on this offense.

Court: No. Not on this offense. And then after that you’re given your revocation. You’re supposed to have an ignition interlock device in your vehicle. You don’t have one. You’re driving while you’re revoked…. (Emphasis added.)

Following right on the heels of the prosecutor’s comment, we view this exchange as being essentially an implicit admission by Stokes’[s] counsel that Stokes’[s] November 2011 OWI conviction, again which the prosecutor just finished stating was the basis for Stokes’[s] revocation, was in fact the basis for the revocation of Stokes’[s] license. See State v. Wideman, 206 Wis. 2d 91, 105, 556 N.W.2d 737 (1996) (“[D]efense counsel may, on behalf of the defendant, admit a prior offense .…”).

While Spaeth allows for admission of the priors by defense counsel, not just any statement will do. For instance, Spaeth’s lawyer acknowledged that jail time was “necessary” in his case, but that wasn’t sufficient because it didn’t admit any particular number of priors. 206 Wis. 2d at 148-50. Here, the court makes a similarly shaky imputation of counsel’s remarks, turning a mistaken correction about whether Stokes was intoxicated during this offense into a tacit admission that Stokes had a prior OWI which resulted in his current revocation. And the court’s discussion of what happened at the plea and sentencing explicitly relies on the silence of Stokes and his lawyer, on their failure to contest the accuracy of the complaint. That directly contravenes Spaeth and Wideman, which rejected the state’s claim that a defendant waives an objection to an enhanced sentence by failing to object. 206 Wis. 2d at 94, 154. All in all, then, the court’s reasoning here is awfully thin gruel.

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