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Time spent confined for traffic offense sentence is excluded from 5-year repeater period

State v. Jason R. Cooper, 2016 WI App 63; case activity (including briefs)

While a conviction for a motor vehicle offense can’t be used to establish a defendant’s repeater status under § 939.62, time a defendant spent in custody serving a sentence for a motor vehicle is still excluded when computing whether any prior convictions for non-motor vehicle offenses occurred within five years of the crime for which the defendant is being sentenced.

The repeater statute clearly excludes convictions for motor vehicle offenses from counting as priors, § 939.62(3)(a), so Cooper’s OWI 5th can’t be used to establish he’s a repeater for purposes of sentencing on his OWI 6th. Cooper had a felony THC conviction that could count, though there’s one hitch: He was convicted in that case well over five years before his OWI 6th, and so it could only count by virtue of § 939.62(2)’s rule that the five-year period is computed by excluding “time which the actor spent in actual confinement serving a criminal sentence….”

Part of Cooper’s time in confinement between 2004 and 2013 was due to his OWI 5th sentence, so he argues that if the OWI 5th conviction itself can’t be used to establish his repeater status, then the time he spent in confinement serving the sentence for the offense shouldn’t be excluded from the five-year period because that effectively allows use of the OWI 5th to make him a repeater. (¶¶2, 4-5, 7-8).

¶9     While Cooper’s argument is creative, this case … is straightforwardly resolved by the plain language of Wis. Stat. § 939.62. Subsection (2) provides that “time” Cooper “spent in actual confinement serving a criminal sentence” is to be excluded from the total amount of time between Cooper’s 2004 conviction and 2013 offense. The 365 days of “time” Cooper “spent in actual confinement serving” his criminal OWI fifth sentence unquestionably meets this clear language. Subsection (3) provides: “In this section ‘felony’ and ‘misdemeanor’ have the following meanings: (a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under [Wis. Stat.] chs. 341 to 349 .…” As indicated, para. (3)(a) does bear upon the first sentence of subsec. (2) so that the felony and misdemeanor convictions referenced therein “do not include motor vehicle offenses under chs. 341 to 349”; however, para. (3)(a) has no bearing upon the last sentence of § 939.62(2), which does not use the word “felony” or “misdemeanor” at all, but is concerned only with “time” a defendant “spent in confinement” on a “criminal sentence,” without any regard to the type of offense underlying that time. Nothing in these provisions suggests “time” spent “in actual confinement” on “a criminal sentence” does not include time related to a motor vehicle offense conviction….

¶10     The State correctly reaches the heart of the issue: “If the legislature had intended that ‘time spent in actual confinement serving a criminal sentence’ not include time spent in actual confinement serving a criminal sentence for an OWI conviction, it could have written the statute to say exactly that.” Yet, it did not. As the State also points out, the legislature knew how to single out prior motor vehicle convictions, as demonstrated by the fact it did just that in Wis. Stat. § 939.62(3) by removing such convictions from the meaning of “felony” and “misdemeanor” in § 939.62, and in doing so precluding a motor vehicle conviction from serving as a sentence-enhancing prior conviction. See § 939.62(2), (3).

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