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Enhancers – § § 343.307(1), 346.65(2)(am)3., OWI – Jury Determination and Apprendi

State v. Lisa M. Arentz, 2011AP2307-CR / State v. Eric R. Hendricks, 2012AP243-CR, District 2, 9/5/12

court of appeals decision (1-judge, ineligible for publication); case activity (Arentz; Hendricks)

Criminal OWI prosecution is premised on, and a resulting sentence enhanced by, a prior civil-forfeiture OWI conviction (which does not itself require unanimous jury verdict upon proof beyond reasonable doubt). Arentz and Hendricks raise the same arguments: the elements of the underlying civil forfeiture must be proved to the jury beyond reasonable at the criminal trial; and, § 343.307(1) unconstitutionally permits enhancement based on a civil forfeiture obtained without proof beyond reasonable doubt to a unanimous jury. The court rejects these related arguments, deeming them controlled by existing precedent: State v. Alexander, 214 Wis. 2d 628, 644-45, 571 N.W.2d 662 (1997) (prior civil forfeiture OWI not essential element of OWI-criminal); State v. Novak, 107 Wis. 2d 31, 40, 318 N.W.2d 364 (1982) (enhancement use of civil forfeiture OWI doesn’t violate defendant’s constitutional rights, despite absence of right to counsel in civil forfeiture proceeding). The court more particularly rejects an Apprendi argument:

¶9        Arentz sidesteps established Wisconsin precedent and extrapolates her argument from Apprendi v. New Jersey, 530 U.S. 466 (2000).  Apprendi holds that 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.  The Apprendi Court expressly excepted prior convictions from its holding, finding that prior convictions are not a fact that must be proved beyond a reasonable doubt to a jury in order to enhance a sentence.  Id. 

¶10      Arentz attempts to evade the “prior conviction” exception in Apprendi by arguing, without support, that a civil forfeiture conviction for OWI does not fall within Apprendi’s notion of a “prior conviction.”  Arentz argues that, as the procedural safeguards of the right to a jury trial and the right to proof of the offense beyond a reasonable doubt are lacking in a civil forfeiture conviction,[4] the prior civil forfeiture conviction becomes the “functional equivalent of an element” and must be proved to a jury beyond a reasonable doubt.

¶11      Arentz does not argue that either of her earlier civil forfeiture OWI convictions were obtained unlawfully.  Arentz challenges the statutory system that allows a court, upon a verdict of guilty on an OWI offense, to count prior OWI convictions toward sentencing, regardless of whether those convictions were criminal or civil.  Arentz’s “functional equivalence of an element” theory would mean every OWI trial would require a trial within a trial as to any earlier civil forfeiture OWI conviction.  Arentz’s premise fails as Wisconsin’s penalty enhancement scheme in Wis. Stat. § 343.307(1) is constitutional and satisfies all due process requirements.  See McAllister, 107 Wis. 2d at 538-39; State v. Banks, 105 Wis. 2d 32, 50-51, 313 N.W.2d 67 (1981).

As suggested on this site just last week, the once-strong possibility that the “prior conviction exception” was ripe for overturn now seems to have faded, Descamps v. U.S., 8/31/12. But that just begs the question: does a civil-forfeiture conviction actually fall within the exception? The rationale for the exception is that “unlike virtually any other consideration used to enlarge the possible penalty for an offense. . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees,” Jones v. United States, 526 U.S. 227, 249 (1999). No problem, of course, with respect to the typical criminal  conviction. But courts generally don’t recite the rationale despite applying the exception to civil forfeitures, and no wonder: the standard of proof is something less than reasonable doubt (clear, satisfactory and convincing to a reasonable certainty, § 800.08(3)). Does this mean that a civil forfeiture conviction necessarily falls outside the prior-exception rationale? Perhaps not; a court might conclude that the burden of proof is sufficiently stringent to support the rationale. But it does, or at least should, mean that a civil forfeiture doesn’t necessarily fall within the exception. What about the “jury trial” guarantee – is that satisfied by a 5-vote verdict on a 6-person jury, § 805.09? Consider that for federal purposes, a 6-person jury must be unanimous for “nonpetty” offenses, Burch v. Louisiana, 441 U.S. 130 (1979); and that for state purposes, a 12-person, unanimous jury is required in all criminal cases, State v. Ronald A. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998). (Also, Dane County v. McGrew, 2005 WI 130, ¶19, 285 Wis. 2d 519, 699 N.W.2d 890 (Bradley, J., conc. ¶70 n. 1: “there is [no] constitutional right to a six-person jury trial in municipal court. Rather, the right is exercised when upon appeal there is a jury trial in circuit court.”). In brief, jury procedure for an OWI-1st, which entails a non-unanimous verdict of fewer than 12 person, satisfies neither the federal nor state requirements for criminal-trial juries – and thus at least arguably falls short of the “jury trial guarantee” that ensures reliability of the typical prior-conviction enhancer. (What about the fact that there’s no guarantee of counsel on OWI-1st? That line of attack has also been rebuffed, albeit without reference to Apprendi, Schindler v. Clerk of Circuit Court, 715 F.2d 341 (7th Cir. 1983), cert. denied, 465 U.S. 1068 (1984).) The reader interested in fleshing out the argument might want to start with Colleen P. Murphy, “The Use of Prior Convictions after Apprendi,” 37 UC Davis Law Review 973 (2004). In any event, there is a case to be made that supposedly controlling authority on the point leave quite a bit to be said.

{ 1 comment… add one }
  • Jason September 7, 2012, 12:57 pm

    Well, the one-judge panel in these cases, in large part, ignored the appellants’ core arguments. With that said, currently pending is the same issue before the court of appeals in a felony OWI. Hopefully, the three-judge panel takes the appellants’ arguments more seriously and actually addresses the real issues raised.

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