Motor Vehicles – OWI — prior convictions — right to jury

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Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI — prior convictions — right to jury

The elements of an underlying first-offense OWI need not be proven to a jury beyond a reasonable doubt in a criminal proceeding for a subsequent OWI violation.

“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 (merely noting that in Almendarez-Torres, the defendant had admitted the three earlier convictions for aggravated felonies, which had been entered pursuant to proceedings having substantial procedural safeguards of their own). 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.”

“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).”

“Wisconsin courts have repeatedly upheld the constitutionality of Wisconsin’s OWI penalty structure. In McAllister, 107 Wis. 2d at 538-39, our supreme court determined that there is ‘no inherent unfairness in considering previous convictions as penalty enhancers rather than as an element of the charged offense.’ States have always been accorded the discretion to apportion responsibility between the judge and jury in criminal cases, there is no presumption of innocence with respect to previous convictions, and a defendant has the right to challenge the existence of previous penalty-enhancing convictions before the judge prior to sentencing. Id. Moreover, the OWI penalty structure satisfies due process as it gives ‘ample notice of the prohibited conduct and penalties.’ State v. Banks, 105 Wis. 2d 32, 51, 313 N.W.2d 67 (1981). First-offense OWI convictions are ‘valid for all purposes, including providing a basis for incarcerating [a] defendant as a second [or subsequent] offender pursuant to [WIS. STAT. § 346.65(2)(am)].’ State v. Novak, 107 Wis. 2d 31, 42-43, 318 N.W.2d 364 (1982).”

Affirmed.

Recommended for publication in the official reports.

2011AP2033-CR, 2011AP2192-CR, 2011AP2478-CR & 2011AP2889-CR State v. Verhagen

Dist. III, Brown County, Outagamie County, Shawano County, Bischel, Metropulos, McGinnis, Grover, JJ., Mangerson, J.

Attorneys: For Appellant: Carroll, John M., Appleton; For Respondent: Weber, Gregory M., Madison; Vopal, Cynthia L., Green Bay; Lasee, David L., Green Bay