Opinion
Case No. 96-0046-CR.
Opinion Released: June 12, 1996 Opinion Filed: June 12, 1996 This opinion will not be published. See RULE 809.23(1)(b)4, STATS.
APPEAL from a judgment of the circuit court for Waukesha County: KATHRYN W. FOSTER, Judge. Reversed in part and cause remanded with directions.
The issue on appeal is whether the established procedures for proving repeater allegations in criminal cases also apply in criminal operating while intoxicated (OWI) cases. We hold that they do. Because the prior convictions of Gerald Kasian were not properly proven in this case, we reverse the enhanced sentence portion of the judgment of conviction. We commute the sentence to the maximum permitted for the underlying OWI conviction, and we remand with directions to enter an amended judgment accordingly.
The controlling facts are straightforward and undisputed. On July 8, 1993, the State filed an amended criminal complaint alleging that on May 14, 1990, Kasian operated a motor vehicle while under the influence of an intoxicant. The complaint also charged Kasian as a repeat offender, alleging prior OWI convictions against Kasian on October 6, 1992, and January 25, 1993. A jury convicted Kasian and the trial court imposed an enhanced repeater sentence pursuant to § 346.65(2), STATS.
The original complaint in this case was filed on July 31, 1990, before Kasian was convicted on the two charges which formed the basis for the repeater allegation in the amended complaint. Kasian was also charged as a repeat offender in the original complaint based on a 1985 OWI conviction. The trial on the original complaint ended in a mistrial because the jury could not agree on a verdict.
The amended complaint did not reallege the 1985 prior conviction because that conviction was outside the five-year time period set out in § 346.65(2), STATS., when the amended complaint was filed. Instead, the amended complaint alleged the OWI convictions which Kasian accumulated after the date of the offense in this case. In State v. Banks , 105 Wis.2d 32, 313 N.W.2d 67 (1981), the supreme court held that prior OWI convictions which occurred after the charged offense could properly form the basis for a repeater allegation. Id. at 44-51, 313 N.W.2d at 72-76.
The manner by which prior repeater convictions must be proven before an enhanced sentence can be imposed is well established. The prior conviction must either be admitted by the defendant or proved by the state. Section 973.12(1), STATS. Case law has held that a defendant's admission to the prior conviction cannot be inferred, but rather must be direct and specific. State v. Farr , 119 Wis.2d 651, 659, 350 N.W.2d 640, 645 (1984). Alternatively, the state must submit a certified copy of the repeater conviction or an official report specific enough to identify the defendant, the crimes and the date of the convictions. State v. Koeppen , 195 Wis.2d 117, 127, 536 N.W.2d 386, 390 (Ct.App. 1995).
The State concedes in this case that Kasian did not directly and specifically admit to the prior convictions. Nor does the State contend that it otherwise proved the prior convictions by way of certified copies or other official reports. Rather, the State contends that the established law for proving prior convictions should not apply in OWI cases. Thus, the State argues that the prior convictions were proven in this case because Kasian did not challenge them.
We note that there was no plea colloquy in this case because Kasian pled not guilty.
The State bases its argument principally on State v. Banks , 105 Wis.2d 32, 313 N.W.2d 67 (1981). There the supreme court held that, unlike the habitual criminality statute set out in the criminal code, a prior OWI conviction for purposes of § 346.65, STATS., need not precede the commission of the charged offense. Banks , 105 Wis.2d at 44-51, 313 N.W.2d at 72-76. Instead, the prior conviction need only occur "within a five-year period at the time of sentencing, regardless of the order in which the convictions were entered." Id . at 47, 313 N.W.2d at 74. The court held that the legislature, by using different language in § 346.65(2), from that in the criminal code, intended a different approach. Banks , 105 Wis.2d at 46-47, 313 N.W.2d at 74. The court also held that this different approach supported the legislative policy of removing drunken drivers from the highways. Id . at 49, 313 N.W.2d at 75. Finally, the court noted that if the criminal code provisions applied, "it would serve the interest of habitual drunken drivers to delay the trial of an offense" and frustrate the legislative intent. Id.
However, the issue in this case is not how the prior convictions are computed, but rather how those convictions are proved. On this question, the supreme court's decision in State v. McAllister , 107 Wis.2d 532, 319 N.W.2d 865 (1982), is much more revealing and persuasive.
In McAllister , the defendant argued that the jury was required to factually find the prior OWI conviction as an element of the charged offense before the enhanced repeater sentence could be imposed. The supreme court disagreed, holding that the graduated penalty structure of § 346.65(2), STATS., was "nothing more than a penalty enhancer similar to a repeater statute which does not in any way alter the nature of the substantive offense." McAllister , 107 Wis.2d at 535, 319 N.W.2d at 867. Likening § 346.65(2) to its counterparts (§ 939.62, STATS., in the criminal code, and § 161.48, STATS., in the Uniform Controlled Substances Act), the court held that the procedure under all three statutes is the same — the judge at the sentencing, not the jury at the trial, determines whether the prior conviction has been established. Importantly, the supreme court distinguished Banks , noting that the issue in Banks — the timing of the prior convictions — was unrelated to the question of how the convictions must be established. McAllister , 107 Wis.2d at 536, 319 N.W.2d at 867.
Here, as in McAllister , the question is not the timing of the convictions, but rather how the convictions must be established. Under the McAllister rationale, we hold that the procedures for proving a prior conviction under § 346.65(2), STATS., should mirror those set out in § 973.12, STATS., of the criminal code. Since the State concedes that those procedures were not followed, we are compelled, pursuant to § 973.13, STATS., to reverse that portion of the sentence which is excessive and we commute the sentence to the maximum permitted for the underlying OWI offense. Upon remand, the court shall enter an amended judgment in accord with this opinion.
By the Court. — Judgment reversed in part and cause remanded with directions.