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OWI – Second or Subsequent Offense, Out-of-State Conviction

State v. Francis A. Malsbury, 2010AP3112-CR, District 2, 6/8/11

court of appeals decision (1-judge, not for publication); for Malsbury: Andrew R. Walter; case activity

Prior conviction, in Washington state in 1999 for reckless driving amended from driving under the influence, qualified as a prior OWI and therefore subjected Malsbury to criminal prosecution.

¶7        We hold that Malsbury’s Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin’s accelerated OWI penalty structure.  Our decision is guided by Washington’s DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI.  See Wash. Rev. Code Ann. § 46.61.5055(14)(v) (West 2011).  Malsbury’s sentence has all the characteristics of an OWI-type conviction:  he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school.  Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from … using a motor vehicle while intoxicated … [or] with an excess or specified range of alcohol concentration.”  Wis. Stat.§ 343.307(1)(d).

The court’s treatment seems pretty cavalier. Note, in the first instance, the court’s reliance on the 2011 Washington code to explicate Malsbury’s 1999 offense. A mere 2 days ago, the United State Supreme Court instructed that for purposes of a federal enhancement scheme, the nature of the prior conviction is determined by when it was entered not any subsequent iteration, McNeil v. U.S., No. 10-5258. We’re not bound by that approach, but still, you’d think some discussion would be warranted before rejecting it. And it might well be that Wash. Rev. Code Ann. § 46.61.5055(14)(v) hasn’t changed in the past 13 years; but as a matter of form, if not substance, it’d be nice to know precisely which version of the prior is to be sized up.

Otherwise, the court musters three reasons for counting the Washington conviction as an OWI prior. First, Washington itself counts reckless driving as a prior when originally charged as DUI. (Again: be nice to know whether it so counted in 1999.) But the court doesn’t explain the significance of the assertion. Indeed, it seems to equate a mere charging decision with a conviction for something nominally different; something that, so far as the reader can guess, does not include driving under the influence as an element. Second, and relatedly, the court stresses that the Washington sentence has the “characteristics of an OWI-type conviction.” While this certainly suggests that Malsbury had a drinking problem, it doesn’t mean he drove under the influence. Courts have remarkably elastic authority to impose conditions of probation, fashioned to match the defendant’s characteristics, whether or not linked to offense elements. Third, the court inexplicably employs ellipses to recite § 343.307(1)(d): To the extent the court means to suggest the statutory focus is on the nature of disposition rather than conviction, the court alters the statute’s plain meaning.

The court has waded square in the middle of the Apprendi thicket: for sentencing enhancement purposes (as in OWI 2nd+), you don’t have the right to jury trial or proof beyond reasonable doubt of the prior conviction, because the nature and existence of the prior is thought to be a matter of mere documentation. But the facts matter, as ever, and the supreme court has adumbrated the constitutional concerns, State v. Long, 2009 WI 36, 317 Wis.2d 92, 765 N.W.2d 557:

¶ 55 Finally, the circuit court will be required to grapple with the difficult task of determining the nature of any out-of-state convictions. The question of whether an out-of-state conviction is “comparable” to a serious felony in Wisconsin raises difficult constitutional issues. We do not address these issues in any depth here because it is not necessary to do so in order to resolve this appeal. However, courts applying a persistent repeater statute must be conscious of these constitutional complexities.

¶ 56 In Apprendi v. New Jersey, 530 U.S. 466, 489 (2000), the Supreme Court declared that every fact that increases the penalty for a crime beyond the statutory maximum sentence must be submitted to a jury and proven beyond a reasonable doubt. The sole exception to the rule is the fact of a prior conviction. Id.

¶ 57 However, when the court is required to compare an out-of-state conviction to the Wisconsin criminal code, the court might be required to assess not only the fact of a prior conviction but also the facts and conduct underlying that conviction. Whether a judge is permitted to make these assessments could implicate Apprendi.

¶ 58 The United States Supreme Court has struggled to resolve a similar dilemma. See Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor v. United States, 495 U.S. 575, 601 (1990). In Shepard and Taylor, the Court was required to determine whether the defendants’ prior state convictions were comparable to the “generic burglary” offenses as contemplated by the federal Armed Career Criminal Act. The Court stated that a judge’s inquiry into the nature of a previous offense “is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26; see also State v. LaCount, 2008 WI 59, ¶52, 310 Wis. 2d 85, 750 N.W.2d 780 (“[A] trial court judge, rather than a jury, is allowed to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record.”).

¶ 59 The constitutional complexities are further heightened when the court must review a complaint charging multiple crimes, yet the defendant pleaded guilty to only one. The court must determine the factual basis for the plea, and whether that factual basis would support a conviction for a serious felony in Wisconsin beyond a reasonable doubt. As the United States Supreme Court cautioned in Taylor, 495 U.S. at 601, “the practical difficulties and potential unfairness of a factual approach are daunting.”

Daunting, indeed. Elliptical emendations of the relevant statute don’t alleviate constitutional stress. The idea is that the prior conviction represents reliable proof that the defendant engaged in certain prohibited conduct. But there is no reliable proof here that Malsbury drove under the influence, only that he was charged with same. Cases like this one only reinforce the need to press the issue of the right to jury determination of the prior. Remember: Gideon v. Wainwright also was a “little” case.

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