Defense win: Post-sentencing vacatur of prior OWIs may constitute a new factor justifying sentence modification

State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR

The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.

Socha was convicted of OWI 5th or more in 2005 and sentenced to prison, consecutive to the prison sentence he was serving in a recent OWI case in Ozaukee County. At the time of sentencing, it appeared he had nine prior OWI offenses. (¶¶2-4).

In 2008, after he was released on extended supervision in the 2005 case, Socha was arrested and eventually convicted for OWI 10th or more. The complaint alleged this was his 11th OWI. He unsuccessfully challenged the counting of some of the priors, including via a collateral attack on some of them. The court sentenced him as an 11th OWI offender and gave him a consecutive sentence to the revocation time in the 2005 case. (¶¶5-8).

During and after further unsuccessful challenges to his sentences on the grounds the circuit court didn’t accurately count his priors and that he had a basis to collaterally attack certain of those priors, Socha went about getting six prior OWIs convictions vacated: two from Wisconsin, which were both improperly treated as OWI 1st offenses; and four from Ohio. (¶¶9-10, 14). With those vacaturs in hand, he filed motions challenging the sentences in the 2005 and 2008 cases. His primary argument was that the sentences should be commuted as excessive under § 973.13 because, once the 6 priors were vacated, he didn’t actually have the requisite number of priors required for the category he was placed in at sentencing, as he would have only had 3 priors (not 9) in the 2005 case and 5 priors (not 10) in the 2008 case (because in the 2008 case the court had already recognized that the two OWI 1st offenses in Wisconsin shouldn’t be counted (¶18 n.12)). In the alternative, he argued the vacated convictions constitute a new factor justifying sentence modification. (¶¶11-16).

The court of appeals rejects Socha’s commutation argument—at least in one sense, as discussed below. The court reasons that at the time of sentencing none of the priors had been vacated, so the counting of the Socha’s priors at sentencing was accurate, the sentencing courts were authorized to impose sentences for OWI 10th and OWI 11th, and the sentences imposed did not exceed the maximums for those offenses. (¶¶21-25).

But Socha’s alternative new factor claim gets a better reception from a majority of the court of appeals panel. It is grounded on a passage from State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, clarified on denial of reconsideration, 2001 WI 6, 241 Wis. 2d 85, 621 N.W.2d 902 (Hahn II), the case that holds that only a claim of a violation of the right to counsel can be the basis for a collateral attack on a prior conviction in the proceeding looking to use that conviction to enhance the sentence. After so holding, Hahn went on to say that the defendant may still “use whatever means available under state law to challenge the validity of a prior conviction” other than a collateral attack and, “[i]f successful, … may seek to reopen the enhanced sentence.” Id., ¶28, clarified in Hahn II, 241 Wis. 2d 85, ¶2.

The court agrees with Socha that his motion for sentence modification based on the recently vacated prior convictions is a kind of “reopen[ing of] the enhanced sentence” permitted by Hahn. Specifically, it meets the basic “new factor” sentence modification test: a fact or set of facts highly relevant to the imposition of sentence but not known to the sentencing judge at the time either because it was not then in existence. State v. Harbor, 2011 WI 28, ¶40, 333 Wis. 2d 53, 797 N.W.2d 828. (¶¶30-32, 35-37)

Of course, establishing that there is a new factor is only the first step, and doesn’t mean the court must modify the sentence; deciding whether to modify the sentence is the second step. Because the circuit courts denied Socha’s motions as an improper collateral attack in the guise of a new factor (¶¶15-16), they didn’t address either: 1) whether the proof Socha submitted established the priors were lawfully vacated and can’t be counted as priors; or 2) what maximum sentence is applicable once the number of lawfully vacated priors is arrived at. (¶38). Over a dissent that concludes the circuit courts did address these issues (¶¶40-47), the case is remanded for the circuit courts to do those two things, and to then “exercise their discretion in imposing sentences within the range of the applicable [penalty] based on Socha’s correct number of prior OWI convictions.” (¶38).

We noted above that in one sense the court rejected commutation as the appropriate remedy—that sense being that the excessive sentences must be reduced the authorized maximum penalty. But in another sense the result here does lead to commutation. The decision directs the circuit court to determine Socha’s number of priors by subtracting the vacated convictions and to then sentence him within the (lower) maximum penalty allowed by the correct number of priors (3 in the 2005 case, 5 in the 2008 case). For all practical purposes, that is “commuting” the sentences to the new, lower maximum sentence, as it’s hard to imagine the circuit court imposing a sentence that’s even lower.

It also means the proceedings on remand (if it comes to that: see below) will look less like a new factor sentence modification and more like resentencing. Indeed, that’s what the dissent thinks the majority is effectively ordering, when it shouldn’t because Socha asked only for sentence modification and that request can’t be turned into a resentencing request without the defendants consent under State v. Wood, 2007 WI App 190, 305 Wis. 2d 133, 738 N.W.2d 81. (¶¶48-49).

Apart from the fact it’s unlikely Socha would object to resentencing under a lesser maximum penalty, it is also the case that the language in Hahn about “reopening” the enhanced sentence implies resentencing is appropriate, and is to be done in light of the penalties applicable without the enhancing prior conviction rather than just modification within the range of penalties with the enhancer. It’s also worth noting that commutation or resentencing are the available options when there’s a successful challenge to an enhanced sentence under § 939.62. If a court enhances a sentence under that statute and it’s later shown the prior conviction(s) can’t be used to enhance, a court may commute the sentence to the maximum available without the enhancer, or, if simple commutation would frustrate the court’s dispositional plan, it may resentence (for instance, by making the unenhanced sentence consecutive), as long as the new sentence is within the maximum range without the enhancer. State v. Holloway, 202 Wis. 2d 694, 551 N.W.2d 841 (Ct. App. 1996).

While Socha prevails for the moment in these cases, he fared less well in his similar attack on the Ozaukee County OWI sentence, where a different court of appeals panel summarily affirmed the denial of his motion. His petition for review is pending. It might get a lift from the likely petition by the state in this case that will ask the supreme court to clarify whether Hahn allows enhanced sentences to be reopened in cases like this.