Sentencing, not offense, controls number of priors

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A repeat drunk driver is to be sentenced based on the number of prior OMVWI convictions at the time of sentencing, not the number at the time of the offense, the Wisconsin Court of Appeals held on Dec. 9.

In February 1998, Brandon J. Matke committed three drunk driving offenses, and was ultimately convicted of all three.

On June 19, 2001, Matke was arrested and charged with fourth offense OMVWI (this is the offense at issue in this case).

While this case was pending, Matke was arrested and convicted of two other OMVWI offenses, and sentenced as a four-time offender, and a five-time offender, respectively. After each conviction, the June 19 complaint was amended, first to charge a fifth offense OMVWI, and then a sixth offense OMVWI.

Finally, on Jan. 23, 2001, Matke was convicted of the June 19 offense. He argued that he should be sentenced as a four-time offender, because he only had three convictions at the time of the offense.

Portage County Circuit Court Judge James M. Mason disagreed, and sentenced him as a six-time offender, to two years confinement, followed by two years extended supervision, consecutive to any other sentence.

Matke appealed, but the court of appeals affirmed in a decision by Judge David G. Deininger.

The court found that the relevant number of prior offenses is to be determined at the time of sentencing, rather than the time of the offense, relying on State v. Banks, 105 Wis.2d 32, 313 N.W.2d 67 (1981), and State v. McAllister, 107 Wis.2d 532, 319 N.W.2d 865 (1982).

In Banks, the court concluded that the statute evinced the legislature’s intent that enhanced penalties apply when the requisite number of convictions have accumulated, "regardless of the order in which the offenses were committed and the convictions were entered." Banks, 105 Wis.2d at 48.

In McAllister, the court held that the number of prior OMVWI convictions is not an element of the offense, but can be proven by certified copies of conviction at sentencing.

When a defendant is charged with operating a motor vehicle with a prohibited alcohol concentration (OMVPAC), however, the situation is different, at least under the statutory scheme then in effect. After two convictions, the prohibited alcohol level dropped from 0.1 percent to 0.08. Thus, in State v. Alexander, 214 Wis.2d 628, 571 N.W.2d 662 (1997), the Supreme Court held that prior convictions in PAC cases were an element of the offense, although a defendant could stipulate to the element to prevent the jury from learning of his prior offenses.

Because Matke was charged with OMVWI, rather than OMVPAC, the court of appeals found that Banks and McAllister govern the case, and require that Matke be sentenced as a six-time offender. The court concluded, "There can be little question that, under Banks and McAllister, the proper time to determine the number of a defendant’s prior convictions for sentence enhancement purposes is at sentencing, regardless of whether some convictions may have occurred after a defendant committed the present offense."

However, the court acknowledged that this holding was undermined by its decision in State v. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12. In Skibinski, the defendant had a prior drunk driving conviction. He was arrested again in August, and while the case was pending, arrested again in September. He resolved both OMVWI cases at the same time, in the same court, in December.

Rather than sentence Skibinski on the August charge as a second-time offender, and the September charge as a third-time offender, the trial court sentenced him as a third-time offender for both.

The court of appeals reversed, giving two rationales.

At one point the court explained that a conviction does not occur until a sentence is imposed, and thus, when the defendant was sentenced for the August offense, he had only one prior conviction, making him a second offender. As for the September offense, the trial court properly treated the defendant as a third-time offender because he then, and only then, had two prior convictions — the much earlier one and the August offense for which sentence had just been imposed.

At another point, however, the court in Skibinski wrote: "when a defendant has two or more prior convictions, the convictions must be proven as an element of the offense, and are predicate to conviction of the graduated offenses. State v. Alexander, 214 Wis. 2d 628, 652, 571 N.W.2d 662 (1997)…. The August 10th OWI cannot be treated as a third offense because the State did not and could not prove that Skibinski had two or more prior convictions at the time of the August 10th OWI. At the time he pled guilty to the August 10th OWI, Skibinski had only one prior OWI conviction. Thus, the trial court erred when it counted the September 19th OWI together with the prior conviction to make the August 10th OWI a third offense." Skibinski, at par. 8.

Taking issue with its own prior discussion of the issue in Skibinski, the court in the case at bar wrote: "The first two sentences in the foregoing excerpt, and our reliance on Alexander, were incorrect. We, regrettably, misstated the law governing the applicatio
n of Wis. Stat. sec. 346.65(2) to sentences for repeat OMVWI offenders.

This part of our analysis is plainly contrary to controlling Supreme Court precedent (McAllister and Banks) holding that (1) the number of prior OMVWI convictions is not an element of the crime of repeat OMVWI, and (2) that the number of prior OMVWI convictions at the time of sentencing, not at the time of the offense, determines which level of penalties applies."

The court added, "Moreover, the disposition we ordered in Skibinski … contradicts our statements in paragraph 8 of the opinion. We concluded that the trial court could properly sentence Skibinski as a third offender for his September offense, notwithstanding the fact that, at the time he committed that offense, he had only one prior OMVWI conviction. In short, our conclusion that the September offense was a third offense for sentencing purposes was correct; our discussion in paragraph 8 was not."

The court therefore held that paragraph 8 is contrary to controlling Supreme Court precedent, and is not binding.

The court also held that it was not error for the trial court to impose Matke’s sentence consecutive to any other sentences he may be serving.

The court acknowledged that the American Bar Association Standards for Criminal Justice Sentencing, and State v Hall, 2002 WI App 108, 255 Wis. 2d 662, 648 N.W.2d 41 — which cites the ABA standards with approval — state that a court should "ordinarily" order multiple sentences to be served concurrently or explain why it did not do so.

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However, the court distinguished Hall, as limited to cases involving multiple sentences imposed at a single sentencing, and held that it has no bearing on a sentence subsequently imposed for a new offense that is unrelated to past offenses for which a defendant may still be serving time.

The court explained, "the present facts are governed instead by the principle that, so long as a sentencing court has considered the proper factors, explained its rationale for the overall sentence it imposes, and the sentence is not unreasonable, the court does not erroneously exercise its discretion simply by failing to separately explain its rationale for each and every facet of the sentence imposed," citing State v. Johnson, 178 Wis. 2d 42, 54-56, 56 n.5, 503 N.W.2d 575 (Ct. App. 1993).

The court also found that concurrent sentences for successive OMVWI convictions would contravene the legislative intent that multiple OMVWI offenders receive harsher punishment upon each successive conviction.

Accordingly, notwithstanding the language in paragraph 8 of Skibinski, and the lack of explanation for consecutive sentences, the court affirmed Matke’s sentence as a six-time offender.

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David Ziemer can be reached by email.