Opinion
No. 2008AP3010-CR.
Opinion Filed: May 13, 2009.
APPEAL from a judgment and an order of the circuit court for Walworth County: MICHAEL S. GIBBS, Judge. Reversed and cause remanded with directions.
[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION IS GOVERNED BY WIS. STAT. RULE 809.23 (2) AND (3).]
¶ 1 Charlie N. Burton appeals from a judgment finding him guilty of operating a motor vehicle while under the influence of an intoxicant (OWI), fourth violation, contrary to WIS. STAT. §§ 346.63(1)(a) and 346.65(2)(am)4. He also appeals from an order denying his motion for sentence modification. Burton contends that he should have been subjected to the enhanced penalties for a second offense for this conviction because only one of three prior Colorado traffic violations qualified as a prior offense under Wisconsin law.
¶ 2 The State charged Burton with a fourth offense, alleging that he had prior countable offenses on April 22, 1990, February 19, 1994 and January 28, 2003. The complaint contained the following information concerning Burton's OWI charge being a fourth offense:
Upon conviction, this would be a FOURTH OFFENSE of the type charged herein, as defined by 346.65(2)(d) and (2)(g), Wisconsin Statutes.
. . . .
Complainant has reviewed a teletype report of the defendant's driving record, received from the T.I.M.E. interpolice agency reporting system, which teletypes he/she has referred to in the past and found to be accurate and reliable. According to said teletype, a copy of which is attached to and incorporated in this complaint, the defendant has been previously convicted 3 TIMES for VIOLATIONS of the type charged herein and is considered a prior offense under 346.65(2)(c) and 343.307, Wisconsin Statutes, the VIOLATION dates being: 04/22/1990, 02/19/1994 01/28/2003 .
¶ 3 On November 29, 2007, Burton filed a motion challenging both the April 1990 and January 2003 Colorado violations, arguing that they did not qualify as prior violations for enhancement purposes under Wisconsin OWI law. Specifically, Burton averred, "That upon information and belief, the State has offered no proof as to two of the three alleged prior drunk driving convictions." Burton did concede that the February 19, 1994 violation qualifies as a prior violation for sentencing purposes, thereby making the current violation a second for sentencing purposes. The State produced an itemized history of Burton's Colorado driving record at the motion hearing and cited to prior holdings in State v. White , 177 Wis. 2d 121, 501 N.W.2d 463 (Ct.App. 1993) (addressing prior Minnesota violation) and State v. List , 277 Wis. 2d 836, 691 N.W.2d 366 (Ct.App. 2004) (addressing prior Illinois violation), as supporting this conviction being a fourth violation. The trial court denied Burton's motion to amend the charge to a second offense.
¶ 4 Burton's claim is that Colorado has a two-tiered scheme for offenses involving drinking alcohol and driving, and that only the first tier would equate to Wisconsin's OWI enhanced penalty provisions. The issue of whether the Colorado violations may be considered for sentencing purposes involves the interpretation and application of statutes to undisputed facts, which are questions of law that we review independently of the trial court's determinations. See White , 177 Wis. 2d at 124.
¶ 5 Burton concedes that his September 19, 1994 offense would qualify as a first tier Colorado offense. However, he asserts that the second tier offenses reflect lesser traffic violations that do not count as prior OWI offenses in Wisconsin. He specifically relies upon a certified Wisconsin Department of Transportation (DOT) driver's record listing the 1994 Colorado violation and confirming the 2007 OWI as his second offense.
¶ 6 Burton contends that the trial court erred by sentencing him on a fourth offense without sufficient proof of prior convictions. The State bears the burden of establishing prior offenses as the basis for the imposition of enhanced penalties under WIS. STAT. § 346.65(2). State v. Wideman , 206 Wis. 2d 91, 94, 556 N.W.2d 737 (1996). If the existence or applicability of a prior offense is challenged, or there is an assertion of lack of information or the defendant is silent about a prior offense, "the State must establish the prior offense for the imposition of the enhanced penalties of § 346.65(2) by presenting `certified copies of conviction or other competent proof . . . before sentencing.'" Id. at 95 (citation omitted).
¶ 7 Here, Burton admitted to the February 19, 1994 Colorado OWI violation. Burton did not, however, admit to the remaining two alleged Colorado violations as being qualifying prior offenses for sentence consideration. If a defendant does not admit to prior sentence enhancing offenses, the State must establish the prior convictions by placing before the trial court "competent proof" of prior convictions. State v. Spaeth , 206 Wis. 2d 135, 148, 556 N.W.2d 728 (1996) ( citing State v. McAllister , 107 Wis. 2d 532, 539, 319 N.W.2d 865 (1982)). We must examine the record for competent proof of Burton's prior OWI convictions.
¶ 8 At Burton's motion hearing challenging two Colorado violations as priors, as well as at the sentencing hearing, the State relied upon a four-page history of Burton's Colorado driver's record. The State contended that "[i]t's a certified copy of his driving record, I will introduce it as an exhibit. The last page or the back of the last page is certified. I have the original in my file, Your Honor." After a careful reading of the record, we conclude that the alleged certified copy of the Colorado history remains in the district attorney's file. It is neither in the record nor was it ever offered and admitted into evidence by the court.
¶ 9 The court record does contain a certified copy of Burton's Wisconsin DOT driving record which includes his Colorado OWI violation in 1994, and this 2007 Wisconsin OWI conviction. In regard to the introduction of Burton's Wisconsin DOT driving record into the sentencing record, the prosecutor responded: "I don't care what the Wisconsin Department of Transportation puts on his Wisconsin driving record at this point in time. I presented the Court with a certified driving record from Colorado. . . ." Again, our search of the record discloses no certified driving record from Colorado. Nor does it contain any other competent evidence supporting sentence enhancement beyond that appropriate for a second offense.
In State v. Wideman , 206 Wis. 2d 91, 107, 556 N.W.2d 737 (1996), our supreme court expressed a concern that is worthy of repeating here:
Nevertheless, further comment is warranted on a related issue. Numerous cases . . . have arisen challenging the State's proof of a prior offense under § 346.65(2). In reading the court of appeals' decisions on this subject we are persuaded that both the State and defense counsel are often careless in making a record about prior offenses. We urge . . . that both the State and defense counsel adopt and follow better practices in the sentencing stage of these penalty enhancement cases.
¶ 10 Because the State failed to meet its evidentiary burden of presenting competent proof of two of the three Colorado violations, Burton cannot be convicted and sentenced as a fourth-time OWI offender. Rather, Burton's concession to the 1994 OWI conviction establishes that he has one prior conviction in his lifetime; however, it further establishes that he has no prior convictions in the past ten years. Burton asks that we remand the matter "for entry of an order commuting [his] sentence to the maximum permitted without the enhancement of [WIS. STAT. §] 346.65(2)." We reverse and remand the matter to the trial court for the purpose of entering an amended judgment. On remand, the court may not count the 1990 and 2003 convictions as priors, and must address the conceded 1994 conviction in consideration of § 346.65(2)(am)2. The court should amend the judgment and sentence accordingly.
Although Burton dedicates most of his argument to attacking the 1990 and 2003 Colorado convictions inappropriate for penalty enhancement purposes, he also notes that, "The trial court should have held that Mr. Burton had one prior conviction, but that the current offense was his first in the previous ten years. Therefore, the trial court should have sentenced [him] as a first-[time] offender pursuant to [WIS. STAT. § 346.65(2)(am)1]." Under § 346.65(2)(am)2., penalties are enhanced where the number of convictions "within a 10-year period, equals 2." This is a question for the circuit court on remand.
By the Court. — Judgment and order reversed and cause remanded with directions.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.