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OWI – Penalty Provision – Enhancement – Proof (and Apprendi)

State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell


¶16. Matke also contends that the trial court’s interpretation of Wis. Stat. § 346.65(2), which is now ours as well, violates due process because it permits the court to sentence him for a sixth OMVWI without requiring the State to convince a jury beyond a reasonable doubt that he had five prior OMVWI convictions. Matke claims that the U.S. Supreme Court so held in Apprendi v. New Jersey, 530 U.S. 466 (2000). Matke is again mistaken. The Court specifically excluded sentence enhancements for prior convictions from its holding in Apprendi:  “ Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490 (italic emphasis added).7

7   The Court explained later in its opinion that, not only does “recidivism `… not relate to the commission of the offense’ itself,” but in addition, “there is a vast difference between accepting the validity of a prior judgment ofconviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.” Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).

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