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Issue Preclusion – OWI Enhancer; Foreign Conviction; Collateral Attack

State v. Michael A. Imbruglia, 2011AP1373-CR, District 2, 2/8/12

court of appeals decision (1-judge, not for publication); for Imbruglia: Rick Ramirez; case activity

In circuit court, Imbruglia successfully challenged use of a Colorado conviction as an OWI enhancer (on the ground that statute isn’t “substantially similar” to Wisconsin’s). However, after another OWI arrest the very next day, the State reasserted that same conviction to enhance the new charge. Applying the multi-factor test for issue preclusion, Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 594 N.W.2d 370 (1999), the court of appeals holds that on balance the first ruling didn’t preclude enhancement with the Colorado conviction. Although 3 of the 5 factors weigh in favor of preclusion, the other factors are more decisive:

¶13      The second factor, whether the issue is a question of law involving distinct claims or intervening shifts in the law, weighs against issue preclusion.  In the intervening time since Judge Malloy’s decision in Ozaukee I that the Colorado conviction is not countable as a prior conviction, recent decisions have signaled a shift in the law to cast a wider net when determining what out-of-state prior convictions are countable.  [Citing: State v. Carter, 2010 WI 132, ¶63, 330 Wis. 2d 1, 794 N.W.2d 213 and State v. Puchacz, 2010 WI App 30, ¶13, 323 Wis. 2d 741, 780 N.W.2d 536.]

¶16      Finally, we examine the fifth factor, whether matters of public policy and individual circumstances involved would render the application of issue preclusion fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action.  As Judge Wolfgram noted, Wisconsin’s policy of counting substantially similar out-of-state convictions is in place to protect public safety by imposing progressively higher penalties as the number of prior convictions rises.  Moreover, Imbruglia’s case presented Judge Wolfgram with an individual circumstance not present in Ozaukee I:  a defendant who, the day after his OWI second conviction, was again arrested for OWI, in an incident that could have ended tragically given the high rates of speed at which the officer traveled in attempting to catch up to Imbruglia and given Imbruglia’s PAC of over twice the legal limit.

 On the merits, the court holds the Colorado statute of conviction substantially similar to Wisconsin’s and therefore available for enhancement:

¶24      Applying this broad interpretation and application of the final phrase in Wis. Stat. § 343.307(1)(d) and placing it in the context of the public policy supporting our OWI laws, we conclude that Imbruglia’s Colorado conviction was properly counted.[5]  See Puchacz, 323 Wis. 2d 741, ¶13.  Under Colorado’s driving while impaired law, Imbruglia was convicted of operating a motor vehicle while he was “impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs.”  See Colo. Rev. Stat. § 42-4-1301(1)(b).  This prohibited conduct is “[s]ubstantially similar” to the type listed in § 343.307(1)(d) (permitting the counting of convictions under an out-of-state law that prohibits a person from operating while under the influence of an intoxicant or a controlled substance, or a combination thereof, and while under the influence of any drug to a degree that renders the person incapable of safely driving).  The circuit court properly counted Imbruglia’s prior Colorado conviction.

The court cites, as persuasive (¶24 n. 5), the unpublished opinion in State v. Burton, No. 2008AP3010, unpublished slip op. (WI App Oct. 7, 2009): “We cite to Burton merely to note that we recently compared the identical Wisconsin and Colorado statutes and came to the same conclusion as we do here:  the Colorado conviction under Colo. Rev. Stat. § 42-4-1301(1)(b) is countable as a prior conviction.” As the court notes, id., July 1, 2009 is the threshold date for citing certain (i.e., “authored”) unpublished opinions.

Enhancement use of the 2002 Colorado conviction effectively makes a 2005 OWI-1st civil, municipal court conviction an OWI-2nd and therefore criminal. However, Imbruglia’s argument that this makes the latter conviction “void and uncountable” (because municipal courts lack jurisdiction over criminal cases), is barred by the rule that “a defendant generally may not collaterally attack the validity of a prior conviction in order to avoid counting it for purposes of sentence enhancement, unless the offender alleges a violation of his or her constitutional right to counsel,” ¶27, citing State v. Hahn, 2000 WI 118, ¶¶26-28, 238 Wis. 2d 889, 618 N.W.2d 528.

¶28      More recently, in State v. Hammill, 2006 WI App 128, 293 Wis. 2d 654, 718 N.W.2d 747, we were guided by Hahn in addressing a case similar to Imbruglia’s.  There, the defendant was charged twice with first offense OWI, once in Eau Claire county and once in the Village of Cameron.  Hammill, 293 Wis. 2d 654, ¶15.  Both charges were pending at the same time, but the defendant entered a plea on the Eau Claire county charge first, then entered his Village of Cameron plea in municipal court.  See id.  Subsequently, when the defendant was charged with fifth offense OWI, he collaterally challenged the Village of Cameron municipal court judgment in the state court proceeding on his OWI fifth charge, contending that the Village of Cameron municipal court lacked subject matter jurisdiction over his OWI second charge and, therefore, the municipal court conviction was a nullity and not countable for penalty enhancement purposes.  Id., ¶¶4, 15.  The State argued that, since the defendant’s challenge to the municipal court conviction was not grounded on an alleged violation of his right to counsel, he could not collaterally attack it in the OWI fifth proceedings based on a lack of subject matter jurisdiction.  Id., ¶16.

¶29      We agreed with the State and rejected the defendant’s collateral attack because it was not based on a violation of the right to counsel.  Id., ¶17.  Accordingly, we held the challenge was barred by the “bright-line rule” of Hahn.  See Hammill, 293 Wis. 2d 654, ¶17.

¶30      We reject Imbruglia’s claim for the same reason.  Imbruglia does not allege a violation of his constitutional right to counsel.  He is instead attempting to use the OWI fourth proceedings to collaterally attack the validity of his Wauwatosa municipal court conviction.  This is not permissible under Hahn.

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