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SCOW: Circuit court doesn’t have to give the state a chance to prove prior OWIs at sentencing

State v. Andre M. Chamblis, 2015 WI 53, 6/12/15, reversing an unpublished per curiam decision of the court of appeals; opinion by Justice Crooks; case activity (including briefs)

The supreme court unanimously holds that when the parties in an OWI prosecution are disputing the number of prior offenses, the circuit court can require the dispute to be resolved before it accepts the defendant’s plea; it doesn’t have to wait till sentencing to determine the number of prior offenses. And even if the court errs in denying the state the chance to prove an additional prior OWI conviction at sentencing, it violates due process to allow the circuit court to resentence the defendant on the basis of the additional conviction if the additional conviction would increase the penalty that could be imposed.

We start with a longer than usual recitation of the procedural facts, as knowing them will aid in understanding the decision. Chamblis was originally charged with OWI 5th/6th (a Class H felony). About six weeks after his arrest the state filed an amended information charging him with OWI 7th/8th/9th (a Class G felony with a three-year minimum term of confinement), citing two additional alleged convictions from Illinois. Chamblis challenged the Illinois convictions, saying the state’s documentation didn’t prove they were OWI-related and, in any event, there was only one incident and thus only one conviction. After a hearing the circuit court agreed with Chamblis, but left the door open for the state to provide further proof of the nature of the Illinois conviction. (¶¶8-11).

Without resolving the dispute over the Illinois conviction, the parties struck a plea deal. Predictably enough, at the plea hearing there was confusion about whether Chamblis was pleading to a 6th or a 7th offense. The state said it would offer additional evidence about the Illinois conviction at sentencing, but the circuit court ruled the new evidence came “too late” because Chamblis couldn’t enter a valid plea without knowing whether he was pleading to a 6th or 7th offense. The court wouldn’t delay the plea date because the case had been pending for a while and the issue about the Illinois convictions had been raised weeks earlier. The circuit court proceeded to take Chamblis’s plea to a 6th offense and, at the subsequent sentencing hearing, imposed a four-year sentence (two in, two out). (¶¶12-16).

The state appealed the judgment of conviction. Citing State v. McAllister, 107 Wis. 2d 532, 539, 319 N.W.2d 865 (1982), and State v. Wideman, 206 Wis. 2d 91, 104-05, 556 N.W.2d 737 (1996), for the proposition that the number of prior convictions may be established at the time of sentencing, the state asserted it should have been allowed to present additional evidence about the Illinois convictions at the sentencing hearing. The court of appeals agreed with the state. It also found the state’s evidence proved the Illinois convictions, so it ordered Chamblis to be resentenced for a 7th offense. (¶¶17-18).

The supreme court reverses the court of appeals. First, it holds a circuit court is not always required to wait until sentencing to determine the number of prior convictions in an OWI case:

¶32    The circuit court correctly recognized that there are situations in which a determination of prior convictions for sentence enhancement should be made before accepting a guilty plea in order to ensure the knowing, intelligent, and voluntary nature of the plea. In a case like this one, where the defendant disputes the number of prior convictions and the issue affects the range of punishment he faces upon conviction, the better practice is to determine the number of prior convictions before accepting the plea. This assures that a defendant understands the direct consequences of his or her plea.

The relevant statutes (§§ 343.307 and 346.65) do not compel the circuit court to wait till sentencing (¶¶34-35). Nor do McAllister and Wideman. Those cases are “inapposite” because they involved trials, where the number of priors for sentencing purposes wouldn’t be an issue till after a guilty verdict; thus, “neither case dealt with the constitutional considerations that are at stake where a defendant wishes to enter a guilty plea and disputes the number of prior convictions that will count toward enhancing his or her punishment.” (¶33).

Having held that a circuit court may require determination of the number of priors at the time of the plea, the supreme court doesn’t decide whether the circuit court properly exercised its discretion to do that in Chamblis’s case. Instead, the supreme court assumes the circuit court erred, and turns to the proper remedy for the error. (¶¶37-39). The court of appeals’ remedy—resentencing Chamblis for a 7th offense—is unacceptable. The supreme court finds that the record clearly establishes that Chamblis entered a knowing, intelligent, and voluntary guilty plea to a 6th offense, not a 7th offense, and rejects the court of appeals’ reliance on Chamblis’s lawyer’s references to the penalties for a 7th offense in the plea questionnaire and before the colloquy began. (¶¶44-49). Because Chamblis entered a knowing, intelligent, and voluntary guilty plea to a 6th offense, subjecting him to 7th offense penalties—which are greater penalties than he was told he could receive upon pleading guilty—would invalidate his plea by violating his due process right to know the consequences of his plea. (¶¶23-27, 50).

The state proposed an alternative remedy: Force the defendant to withdraw his plea. This remedy is also unacceptable, for two reasons. First, it deprives Chamblis of the benefit of his plea bargain (which is particularly unfair given that “Chamblis has already served the 2 year confinement portion of his originally imposed sentence and therefore has an expectation of finality in that sentence” (¶56)). Second, the state could have avoided this dilemma, e.g., by withdrawing its plea offer instead of going through with the plea knowing the circuit court would accept a plea only to the 6th offense, or by seeking review of the circuit court’s decision by filing an interlocutory appeal. (¶57).

A concurrence by Justice Ziegler (¶¶62-89) criticizes the majority for assuming the circuit court erred in precluding proof of the Illinois prior when the record amply shows that decision was an appropriate exercise of discretion. In fact, “[a] contrary conclusion not only raises concern regarding fairness and the ability of a defendant to knowingly, intelligently, and voluntarily plead but also, it neuters the court’s ability to control the docket and calendar. In the case at issue the court correctly determined that time had come for the parties to know the scope of the charges and the potential penalties.” (¶63).

Though the court doesn’t say a court must always make a determination of the number of priors before the defendant pleads guilty or no contest, as a practical matter this decision gives circuit courts every incentive to do that in cases where the parties are fighting about the number of priors and the final number will determine which felony class the defendant falls into. The incentive arises, of course, from the fact that (as happened here) taking a plea to the lower class felony will preclude bumping the defendant into the higher class at sentencing should the state prove another prior or two at that time.

Note that the state suggested that if the number of priors hasn’t been established at the time of the plea, the judge can still take a valid plea by covering all the possible penalties that might be imposed depending on the number of priors the state proves at sentencing. The court doesn’t endorse the idea, however: “While that approach may be constitutionally permissible in a particular case, we note that the penalty ranges could vary dramatically depending on the number of prior convictions the defendant disputes. See Wis. Stat. § 346.65(2)(am)1.-7. For that reason, the better practice in this type of situation is to determine the number of prior convictions that will count toward sentencing prior to accepting the plea.” (¶36). Moreover, the state’s suggestion doesn’t solve the problem. When the defendant is disputing some of the priors, he or she won’t admit to those priors at the time of the plea; absent an admission to the priors at the time of the plea, the court shouldn’t take a plea to the higher felony but (like the judge did in Chamblis’s case) should instead take a plea to the felony appropriate to the number of priors the defendant does admit. If the judge does that, the defendant (like Chamblis) can’t be sentenced for the greater offense if the state proves more priors at sentencing. So we’re back to the problem: Accept the plea to the lower undisputed felony, or wait to take a plea till the number of priors is settled.

Finally, the concurrence is right to chide the majority for assuming without deciding there was an erroneous exercise of discretion by the judge in this case. If you’re battling with the state about the number of priors, you’ll want to help ensure that the record amply shows the circuit court properly exercises its discretion should it ever decide to preclude the state from offering further evidence about priors. Getting the court to set (and stick to) a schedule for motions, briefing, hearings, and decision on the issue should help. So will reminding the judge that resolving the dispute about the number of priors is crucial to resolving the case with a plea because, according to the supreme court, the “better practice” (¶¶32, 36) is to determine the number of prior before the plea.

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