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Use of 1st OWI offense to enhance penalty; collateral attack on prior OWI

State v. VerhagenState v. Nickles,  State v. Van Asten, and State v. Bell, 2013 WI App 16; consolidated court of appeals decision; case activity: Verhagen; Nickles; Van Asten; and Bell

OWI – Use of first offense to enhance penalty

In a prosecution for a second or subsequent OWI offense, New Jersey v. Apprendi, 530 U.S. 466 (2000), does not require the state to prove the elements of an underlying first-offense OWI beyond a reasonable doubt in order to use the first offense as a penalty enhancer:

¶26      The appellants contend their first-offense OWIs should not be counted because their convictions for those offenses were secured without the procedural safeguards of a criminal trial.  Specifically, the appellants contend that a “prior conviction” under Apprendi must be based on a judgment from a proceeding in which the defendant had a right to a jury trial and the State bore the burden of proof beyond a reasonable doubt.  Verhagen correctly notes that in a civil prosecution, there is no right to a twelve-person jury, and the verdict need not be unanimous.  See Wis. Stat. § 756.06(2) (six-person jury in forfeiture actions); § 805.09(2) (five-sixths of jurors must agree on verdict).  In addition, the burden of proof in a civil OWI prosecution is “clear, satisfactory, and convincing” evidence.  See Wis. Stat. § 800.08(3).

¶27      We believe the appellants read too much into Apprendi.  Notably, the Supreme Court did not declare unconstitutional enhanced penalties based on prior convictions obtained in the absence of the jury guarantee and criminal burden of proof.  See Apprendi, 530 U.S. at 488…. Indeed, it appears what constitutes a “prior conviction” under Apprendi is a disputed matter among the federal courts of appeal.  See, e.g., United States v. Smalley, 294 F.3d 1030, 1032 (8th Cir. 2002) (disagreeing with United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001)).  The Smalley court expressed skepticism that “it is not only sufficient but necessary” that a conviction underlying an enhanced penalty be secured through a jury trial by proof beyond a reasonable doubt to qualify for the Apprendi exception.  Smalley, 294 F.3d at 1032.

¶28      We cannot, nor will we attempt to, resolve this dispute among the federal courts today, as Wisconsin law provides adequate guidance.  Constitutional due process and jury trial requirements do not compel the determination of a prior conviction at trial.  Saunders, 255 Wis. 2d 589, ¶44 (citing Apprendi, 530 U.S. at 490; Almendarez-Torres, 523 U.S. at 230).  Prior OWI convictions are at most a “status element” to be submitted to the sentencing judge after the verdict has been rendered.  See Saunders, 255 Wis. 2d 589, ¶46; State v. Alexander, 214 Wis. 2d 628, 650, 571 N.W.2d 662 (1997).

Though the court goes on to note that Wisconsin’s OWI penalty structure has been held to be constitutional, it cites cases decided before Apprendi (¶29), thus sidestepping the crucial issue: Can a civil judgment can count as a “conviction” under Apprendi? The court does acknowledge this is a “disputed matter” and it has arisen most often with respect to juvenile adjudications, which were at issue in the two cases cited by the court, Tighe and Smalley. At least in Wisconsin, an OWI 1st is like a juvenile adjudication in that there is no right to a unanimous 12-person jury; but they differ in that a juvenile has a right to counsel and to proof beyond a reasonable doubt, compared to no right to counsel and the lower standard of clear and convincing evidence in the OWI 1st.

The majority of courts that have considered the question have said juvenile adjudications do count as “convictions” despite the lack of the standard criminal procedural protections. The Seventh Circuit recently joined the majority in Welch v. U.S., 604 F.3d 408 (7th Cir. 2010), but over a dissent by Judge Posner, who stressed Apprendi’s reference to prior convictions being based on a finding of guilt beyond reasonable doubt by a jury. Thus, while this case may settle the issue for now with respect to OWI 1st cases in Wisconsin, the larger question will obviously have to be resolved by the U.S. Supreme Court.

OWI – collateral attack on prior uncounseled conviction; sufficiency of showing

Van Asten’s collateral attack on one of his prior criminal OWI convictions fails because the minute sheet of his plea hearing in that prior case show he was advised of his right to counsel and the charges and penalties; minutes from a later hearing showed he asked for more time to get an attorney; and, at the hearing on his collateral attack motion, he admitted he had unsuccessfully sought a public defender. A belated attempt to argue in his reply brief that he was not advised of the difficulties and disadvantages of proceeding pro se is rejected as undeveloped and not supported by his testimony that he could not remember the earlier proceedings.

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