OMVWI Case Analysis

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The court’s discussion of why Matke should properly be sentenced as a six-time offender, rather than a four-time offender is well-reasoned, and its disavowal of paragraph 8 in State v. Skibinski, 2001 WI App 109, 244 Wis.2d 229, 629 N.W.2d 12, is welcome.

Unfortunately, the court’s discussion of State v. Hall, 2002 WI App 108, 255 Wis.2d 662, 648 N.W.2d 41, and the American Bar Association Standards for Criminal Justice Sentencing, which the court of appeals in Hall cited, creates a new problem, because it is only half correct.

Distinguishing Hall, and the Standards, the court states that the presumption that sentences should "ordinarily" be concurrent, or the court should explain why the sentences are consecutive, only applies when the court imposes multiple sentences at a single sentencing, but not when the court is imposing sentence for a new offense that is unrelated to past offenses for which a defendant is still serving time.

Actually, what the Standards state is that there is a presumption in favor of concurrent sentences, "in sentencing an offender for offenses that were part of an episode," even if, "the separate offenses are not merged for sentencing (emphasis added)." 18.6.5(c)(ii).

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Thus, the ABA Standards quoted in Hall, and the presumption of concurrent sentences, do apply to a sentencing when the defendant is already serving time for another conviction, if the convictions are "part of an episode," and are not limited to multiple sentences given at a single sentencing. As is clear, the Standard explicitly contemplates that the sentences are not being imposed at a single, merged sentencing.

The court in the case at bar ultimately reaches the correct decision in not applying the presumption of concurrent sentences.

However, that is because the various drunk driving episodes were all distinct, rather than being part of a single episode. The subsequent sentence was, as the court correctly noted, "imposed for a new offense that is unrelated to past offenses for which a defendant may still be serving time."

However, the fact that the sentences were imposed on different dates is wholly irrelevant. If a defendant is sentenced for different offenses, on different dates, but those offenses are all part of a single episode, the ABA Standards actually support a presumption of concurrent sentences, contrary to the court’s suggestion.

– David Ziemer

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David Ziemer can be reached by email.