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BENCH BLOG: Drunken driving case leads Supreme Court to correct Court of Appeals

By: Jean DiMotto//July 7, 2015//

BENCH BLOG: Drunken driving case leads Supreme Court to correct Court of Appeals

By: Jean DiMotto//July 7, 2015//

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Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at [email protected].

The Wisconsin Supreme Court unanimously reversed the Court of Appeals in a decision that would have remanded a case to the circuit court in order to expose a drunken driver to a higher maximum sentence.

The ruling came even though the defendant, by the time the Court of Appeals had decided the matter, had already served the incarceration phase of his sentence.

The drunken driver was Andre Chamblis. He was accused of operating while intoxicated and with a prohibited blood-alcohol concentration. Because he had five previous OWI convictions in Minnesota, the latest charges were each treated as being a sixth offense.

Amended complaint

The state, though, later went on to cite two previous OWI convictions in Illinois as reason to amend the complaint, turning the latest charges into a seventh offense. The change increased Chamblis’ exposure to both mandatory-minimum and possible maximum sentences.

Yet, despite six months of emails among lawyers, the state did not furnish the documentation needed to establish the existence of the Illinois convictions. Moreover, Chablis’ attorney filed a motion challenging those convictions. Even then, the state was two weeks late in filing its response.

LaCrosse County Circuit Judge Elliott Levine agreed with Chamblis that the convictions in Illinois should be treated as one conviction because they arose out of the same incident. Levine also ruled that the state had not furnished sufficient proof that the conviction was, in fact, related to an OWI charge.

Hence the lingering question over whether the charge against Chamblis should be considered a seventh OWI/PAC, rather than a sixth.

By now, fully 10 months had passed since the time of Chamblis’ arrest. He remained incarcerated pending bail, which he could not post. He had demanded a speedy trial. Yet the proceedings were not adjourned until past the 90-day mark, in part because of the appointment of a second lawyer to represent Chamblis and in part because of the state’s delays.

Chamblis decided to plead guilty.

Plea hearing

At the plea hearing, the state indicated it would — at the subsequent sentencing hearing — make an offer of proof about the Illinois conviction. Chamblis’ counsel objected, citing the spate of emails that had already been exchanged on the subject.

Levine noted that plea hearings, by their very nature, often require information about previous convictions to be made known upfront. Trials, by contrast, allow the release of such information to be put off until sentencing.

Chamblis’ counsel stated that, before he conducted the plea hearing, he wanted to settle on an official number for his client’s prior convictions. Doing that, he said, would ensure that “Mr. Chamblis knows what he’s pleading guilty to.”

Even so, Judge Levine, expressing his frustration with the case’s slow progress, prevented the state from providing that information at sentencing. It, he said, was “way too late.”

Even though the plea questionnaire, completed the previous day, had listed the sentence exposures for both a sixth and seventh offense, Levine conducted the plea colloquy for a sixth-offense PAC only. He questioned Chamblis carefully about his understanding that he was pleading to a sixth, rather than a seventh, offense.

Two months later he sentenced Chamblis to two years of incarceration and two of extended supervision.

Court of Appeals

Even though the state had dragged its feet for eight months before producing appropriate documentation of Chamblis’ Illinois conviction, it nonetheless appealed Levine’s exercise of discretion. Only with the appeal did it submit the required documentation.

Surprisingly, the District 4 Court of Appeals agreed that the state should have had until sentencing to produce the documentation. It then took on a circuit court’s role and determined that the state had proved that the Illinois conviction was OWI-related and thus concluded the conviction was for a seventh offense, not a sixth.

If that wasn’t enough, the appeals court remanded the case so that the judgment of conviction could be amended to reflect a seventh offense. With the minimum mandatory sentence for a seventh offense being three years’ incarceration, the change put Chamblis at risk of spending at least one more year in prison.

Supreme Court

In taking the case, the Supreme Court assumed, but did not decide, that Levine had erred in refusing to allow the state to submit the documentation at sentencing. It then conducted a due-process analysis.

The court, in an opinion attributed to Justice Patrick Crooks, agreed with Levine that the prior convictions should have been known at the time of the plea rather than at sentencing.

This is especially so when, as here, “the defendant disputes the number of prior convictions and the issue affects the range of punishment he faces upon conviction.”

Presenting information about prior convictions early on, according to the decision, helps ensure that defendants understand the direct consequences of a plea.

The high court found the Court of Appeals’ remand remedy to be a violation of due process because it rendered Chamblis’ plea unknowing, unintelligent and involuntary.

The state, continuing its intransigence, argued that the appropriate remedy was a mandatory plea withdrawal. Chamblis, though, did not want to withdraw his plea. Moreover, the Supreme Court found it “fundamentally unfair and thus violative of due process to require Chamblis to withdraw his guilty plea in this case.”

First, “forced plea withdrawal deprives Chamblis of the benefit of his (plea) bargain… particularly in light of the fact that Chamblis has already served the 2 year confinement portion of his originally imposed sentence and therefore has an expectation of finality in that sentence.”

“Second, we note that the State was not without options to avoid this dilemma.”

The decision of the Court of Appeals was therefore reversed and Chamblis’ conviction for a sixth offense upheld.


In a solitary concurrence, Justice Annette Ziegler compellingly argued that Levine did not err but instead had reasonably exercised his discretion to control his court docket and account for the state’s months-long delays.

“If we were to conclude that under these facts the circuit court erroneously denied the State’s request to introduce evidence at a later date, we would impermissibly allow the parties to control the circuit court’s calendar and at the same time endorse the idea that a defendant need not know the charges to which he pleads or their penalties.”


The Court of Appeals’ surprising decision perhaps reflects the fact that none of the judges in the per curiam decision – Brian Blanchard, Gary Sherman and Joanne Kloppenburg – was ever a circuit court judge. None of them, in other words, has ever experienced inexcusable delays or taken a plea from a repeat drunken driver.

A circuit judge such as Levine knows that it is not only unwieldy but inappropriate to take a plea to an OWI or PAC offense when there is uncertainty over a matter — the number of prior convictions in this case — that could affect the types of sentencing a defendant is exposed to.

I found the Supreme Court opinion to be somewhat hesitant and tepid. It couched some of its statements as “best practices” rather than due-process necessities. The concurrence is much more forceful, and appropriately so.

I’m surprised no one joined the concurrence. This is the second time this term that Ziegler has concurred with a cogent argument but failed to persuade enough other justices to her position to sway the majority opinion. A pity.


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