Review of a per curiam court of appeals decision; case activity
Issues (composed by SCOW). See order granting review.
1. Where a defendant seeks to plead guilty or no contest to a charge of operating a motor vehicle while under the influence of an intoxicant (OWI), or with a prohibited alcohol concentration (PAC), do State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986) and due process principles require that the number of prior offenses that count for sentence enhancement be determined prior to entry of the defendant’s plea?
2. Is a court of appeals’ decision ordering remand to the circuit court with instructions to: (1) issue an amended judgment of conviction reflecting a conviction for operating with a PAC, as a seventh offense, and (2) hold a resentencing hearing, and impose a sentence consistent with the penalty ranges for a seventh offense, constitutionally impermissible under Bangert and due process principles where the defendant specifically entered a plea of guilty to PAC as a sixth offense, where the circuit court sentenced the defendant in accordance to proper penalties for PAC as a sixth offense, and where the defendant has already served the confinement portion of such sentence?
The State charged Chamblis with OWI as a 7th, 8th or 9th offense and as a repeater. When Chamblis pled guilty, he admitted to 5 prior OWI convictions bringing his total to 6, not 7. He contested an alleged conviction in Illinois, and the circuit court excluded the evidence of it. The circuit court told the State that it could still further proof of the 7th conviction at sentencing, but when the State tried to do so, the circuit court “sorry, you’re too late” and sentenced Chamblis on the basis of 6 OWI convictions. The court of appeals held that the circuit court erred in excluding the State’s evidence of the Illinois conviction because, under State v. Wideman, 206 Wis. 2d 91, 104, 556 N.W.2d 737 (1996) and State v. McAllister, 107 Wis. 2d 532, 539, 319 N.W.2d 865 (1982), prior OWI convictions may be proved before or at the time of sentencing. It remanded the case to the circuit court with an instruction to count the Illinois conviction as a prior offense and to resentence Chamblis based on 7 OWI convictions, not 6 he agreed to at the time of pleading guilty. The 7th offense changed his felony class and increased his sentence exposure.
Note: The defendants in Wideman and McAllister were convicted at jury trials so the general rule that the State may prove prior OWIs before or at the time of sentencing made sense in that context. Chamblis, in contrast, pled guilty. Bangert requires that a plea be knowing, voluntary and intelligent. The question is whether this means that the defendant has to know the number of offenses that will count toward a sentence enhancement before he pleads guilty
If you’re wondering about double jeopardy, the court of appeals ducked the argument claiming that Chamblis had not developed it, and SCOW made a point of excluding double jeopardy from the issue it framed for review. See the order.