On Point blog, page 4 of 19
Court of Appeals rejects challenge to pleas to DV-related charges
State v. Terrance Lavone Egerson, 2016AP1045-CR, District 1, 2/27/18 (not recommended for publication); case activity (including briefs)
Egerson moved to withdraw his pleas, alleging his trial lawyer was ineffective for failing to challenge the domestic abuse repeater enhancers appended to the charges Egerson faced. According to Egerson, those enhancers never applied, so he was overcharged and led to believe his sentencing exposure was greater than it was. The court of appeals holds trial counsel wasn’t deficient because the complaints supported charging them and, in any event, Egerson hasn’t shown prejudice.
Court of appeals holds that expunged OWI 1st counts as prior conviction for penalty enhancer
State v. Justin A. Braunschweig, 2017AP1261-CR, 2/1/8, District 4 (1-judge opinion, ineligible for publication); petition for review granted 6/11/18, affirmed, 2018 WI 113; case activity (including briefs)
Let’s hope expunction has not worn out its welcome at SCOW because this decision could use review and possibly reversal. The State charged Braunschweig (no “er”) with OWI and PAC 2nd and submitted a certified DOT record to prove that he was convicted of an OWI 1st in 2011–a conviction that had been expunged. On appeal he argues that an expunged conviction cannot serve as a predicate for an OWI 2nd. It should be considered a status element that must be proven beyond a reasonable doubt. The court of appeals disagrees, and the upshot is that someone charged with OWI cannot claim the primary benefit conferred by §973.015–i.e. a fresh start. Is that what the Wisconsin legislature intended?
Defense wins in calculation of the 10-year period under § 346.65(2)(am)2.
State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)
In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.
Uncertified DOT driving record + JOC on CCAP + court of appeals opinion = proof of countable prior OWI offense
State v. Kory v. Ambroziak, 2017AP22-CR, 9/19/17, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)
Ambroziak argued that he was incorrectly sentenced for a 2nd-offense OWI because the State had failed to prove the existence of a prior OWI-related offense beyond a reasonable doubt. But the court of appeals held that the State carried its burden. Thus, the circuit court correctly sentenced Ambroziak with second-offense OWI penalties.
Defendant made prima facie showing of invalid waiver of counsel in prior OWI case
State v. Scot Alan Krueger, 2016AP2438-CR, 5/25/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court erred in holding Krueger failed to make a prima facie showing that he didn’t validly waive the right to counsel in a prior OWI conviction.
Challenges to blood draw, use of OWI prior convictions rejected
State v. Julieann Baehni, 2015AP2263-CR, 4/27/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Baehni was charged with OWI, fourth offense. In the circuit she unsuccessfully sought to have the blood draw test results suppressed because she wasn’t given the alternative test she requested. She also collaterally attacked two of her prior convictions, likewise without success. The court of appeals affirms.
Collateral attack on prior moot where sentence long over
State v. Peter J. Long, 2016AP729, 3/28/17, District 1 (one-judge decision, ineligible for publication); case activity (including state’s brief)
Peter Long filed a Wis. Stat. § 974.06 arguing that his sentence for OWI-4th should be commuted or modified to the maximum sentence for an OWI-3rd, because one of his priors was uncounseled.
A puzzling decision on collateral attack pleading requirements
State v. Matthew A. Seward, 2016AP1248-CR, 3/22/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a permissive appeal. Matthew Seward is charged with OWI-3rd; he seeks reversal of the circuit court’s denial of his collateral attack on his OWI-2nd conviction.
No IAC for implying prior OWIs; stipulation to three priors valid; no issue preclusion on number of priors
State v. Bruce T. Henningfield, 2015AP1824-CR, 3/15/17 (not recommended for publication); case activity (including briefs)
Bruce Henningfield was convicted by a jury of OWI and PAC counts, and was sentenced on the OWI as a tenth or subsequent offense. He raises three issues related to his prior convictions; the court rejects them all.
Defendant forfeited challenge to improper treatment of second OWI as civil offense
Eau Claire County v. Duane D. Collier, 2016AP366, District 3, 2/22/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Collier’s belated challenge to his 1992 civil forfeiture judgment for OWI 1st offense is foreclosed by City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738.