State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05
For Matke: James B. Connell
Issue: Whether the number of prior OWI convictions used for penalty enhancement, § 346.65(2), is determined as of date offense is committed or date of sentencing for offense.
¶5. How and when to count prior OMVWI convictions for purposes of penalty enhancement under Wis. Stat. § 346.65(2) has been settled law since at least 1981, when the supreme court decided State v. Banks, 105 Wis. 2d 32, 313 N.W.2d 67 (1981). … The court concluded that the language evinced the legislature’s intent that enhanced penalties apply when the requisite number of convictions have accumulated within the period specified “regardless of the order in which the offenses were committed and the convictions were entered.” Id. at 48. …¶6. A year later, the supreme court concluded in State v. McAllister , 107 Wis. 2d 532, 319 N.W.2d 865 (1982), that the number of a defendant’s prior OMVWI convictions to be counted for penalty enhancement purposes is notan element of the offense of OMVWI. …
¶8. … His present conviction was for OMVWI, not PAC, and the statute under review is Wis. Stat. § 346.65(2), a penalty enhancement statute, not Wis. Stat. § 340.01(46m), which defines an element of certain PAC offenses.
¶9. Thus, the holdings in Banks and McAllister, not those in Ludeking and Alexander, govern the present facts, requiring that we affirm Matke’s sentence as a six-time OMVWI offender. There can be little question that, under Banks and McAllister, the proper time to determine the number of a defendant’s prior convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense.
The court withdraws language from ¶8 of State v. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12, which suggested that prior convictions must be proven as an element of OWI-repeat offense. See ¶¶14-15. The court, it should be noted, takes pains to demonstrate that the withdrawn language was unnecessary to the holding, “is plainly contrary to controlling supreme court precedent,” contradicted language elsewhere in Skibinski, and therefore “is not binding on us here.” All true, no doubt, but notice how the discussion finesses the procedural problem presented by the “unified voice” construct of the court of appeals, namely that “(t)his court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so,” American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18 (emphasis supplied), reversed on other grds., 2004 WI 2. Indeed, the supreme court has all but said that the court of appeals lacks authority to withdraw even its own dicta. State v. William L. Morford, 2004 WI 5, ¶40. Skibinski may well have been wrong, perhaps patently so, but something more than that is required to prise open the court’s language-withdrawal window. That something would be the notion that the withdrawn language is irreconcilable with supreme court precedent, because the court of appeals plainly is required to follow that court’s pronouncements when they conflict with its own, State v. James F. Brienzo, 2003 WI App 203, ¶14. A more interesting problem would be presented if the only concern were with internally inconsistent logic or language; how the court is to choose which branch of its forked-tongue pronouncement satisfies the unified-voice doctrine will have to await a more suitable case.