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State barred from amending OWI charge from felony to misdemeanor

State v. Brian R. Corvino, 2016 WI App 52; case activity (including briefs)

This decision examines § 967.055(2)(a), which requires the State to apply to the circuit court before amending an OWI charge. The court of appeals found that amending the charge here would be inconsistent with the public policy of deterring drunk-driving and held that the circuit court had the inherent authority to order the State to file an Information charging Corvino’s 4th OWI as a felony.

Corvino was arrested for driving with a .224% BAC. That was over 11 times the applicable legal limit for a person with his record. The State filed a complaint charging him with 4th-offense OWI as a class H felony. At the arraignment, it filed an Information charging the same offense as a misdemeanor, per the parties’ plea agreement. Section 967.055(2) requires a prosecutor to ask the court for permission to dismiss or amend an OWI charge under §346.63(1) and allows the court to grant permission only if it finds that doing so is consistent with the public’s interest in deterring drunk driving. The DA neglected to follow that procedure in this case. Asked to justify the amendment, the DA and Corvino together argued that the public’s interest was served because:

(1) the parties had reached a plea agreement, which removed all potential for an acquittal; (2) Corvino had paid $4,000 to enter a comprehensive alcohol treatment program, of which he had already completed four weeks; (3) Corvino had a good job, which he would likely lose if convicted of a felony; (4) if Corvino lost his job, he would no longer have the money to pay for alcohol treatment, and he would also lose his health insurance coverage; and (5) in reliance on the plea agreement, Corvino had waived his right to a preliminary hearing and his right to file any suppression motions. Slip op. ¶8.

The circuit court held that the defendant’s personal circumstances weren’t enough to justify the amendment. And typically, at least in Oneida County, such amendments are allowed only when the State’s ability to prosecute the original charge is compromised in some way. ¶¶24-25. The court of appeals approved this exercise of discretion:

On this record, the circuit court could reasonably conclude that despite its potential adverse impact upon Corvino, a felony charge was necessary to impress upon Corvino the seriousness of his conduct in order to effectively deter him from operating while intoxicated in the future. Although a contrary conclusion may also have been reasonable, that is not a basis for us to reverse the court’s discretionary determination. Further, Corvino does not explain how reducing the charge against him to a misdemeanor would constitute “vigorous prosecution” that would deter Corvino and others from driving while intoxicated. ¶28.

Corvino argued that §967.055(2)(a) should not even apply in this case because the charging document was the Information, and the DA did not amend it. The court of appeals didn’t buy this point at all. It held that a complaint is also a charging document.¶¶12-22.

Corvino also argued that the circuit court erred in rejecting the parties’ plea agreement. That failed because he could not explain how the circuit court could accept a plea to the misdemeanor offense after it had just rejected the DA’s attempt to amend the felony to a misdemeanor. ¶31.

Lastly, Corvino argued that the circuit court could not order the DA to file an information charging a 4th-offense OWI as a felony. The court of appeals held that under State v. Henley, 2010 WI 97, 328 Wis. 2d 544, 787 N.W.2d 350 the circuit court had the inherent authority to do so.

The circuit court accepted the Information without realizing the prosecutor had amended the OWI charge against Corvino from a felony to a misdemeanor. This was contrary to WIS. STAT. § 967.055(2)(a) . . . Under these circumstances, in order for the court to fulfill its legislatively mandated function to oversee the amendment of OWI charges, the court must have had inherent authority to reconsider its acceptance of the Information. Likewise, upon determining the proposed amendment did not meet the statutory requirements, the court must have had inherent authority to order the prosecutor to file an Information reinstating the original felony charge. Without such authority, the court could not properly function in an adjudicatory capacity to resolve the case. See Henley, 328 Wis. 2d 544, ¶73. ¶33.

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