State v. Justin A. Braunschweig
State v. Justin A. Braunschweig
Opinion
*746
¶ 1 This is a review of an unpublished decision of the court of
*747
appeals,
1
State v. Justin A. Braunschweig
, No. 2017AP1261-CR, unpublished slip op.,
¶ 2 The court is now presented with two overriding issues. First, we consider whether a prior expunged OWI conviction constitutes a prior conviction under
¶ 3 Second, we consider the State's burden of proving the prior OWI conviction in second offense OWI-related offenses. We conclude that the State must prove this prior OWI conviction, which is not here an element of the offense charged, by a preponderance of the evidence. Thus, we affirm the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶ 4 In 2011 Braunschweig was convicted of injuring another person by operation of a vehicle while
*748
intoxicated, contrary to
¶ 5 On September 2, 2016, nearly five years after his 2011 conviction, Braunschweig was arrested for driving while intoxicated with a PAC of .16. Braunschweig was subsequently charged with criminal misdemeanor offenses: one count of OWI, contrary to
¶ 6 Before trial, Braunschweig filed a motion challenging the State's use of the
*203
2011 conviction as a predicate offense under
¶ 7 Before trial, Braunschweig argued that the existence of at least one prior conviction is a status element in a second offense case, and that absent a stipulation, the prior OWI must be proven beyond a *750 reasonable doubt to the trier of fact. The circuit court rejected this argument. Braunschweig was convicted of both counts and was sentenced the same day. The circuit court stayed his sentence pending appeal.
¶ 8 Braunschweig filed a notice of appeal and the court of appeals affirmed the circuit court. Braunschweig , No. 2017AP1261-CR, ¶¶ 1, 30. On February 27, 2018, Braunschweig filed a petition for review in this court. On June 11, 2018, we granted the petition.
II. STANDARD OF REVIEW
¶ 9 "The interpretation and application of a statute present questions of law that this court reviews de novo while benefitting from the analyses of the court of appeals and circuit court."
State v. Alger
,
¶ 10 Similarly, the "[d]etermination of the appropriate burden of proof in this case presents a question of statutory interpretation."
Shaw v. Leatherberry
,
¶ 11 Furthermore, this case requires the interpretation of our prior case law. "[S]tare decisis concerns are paramount where a court has authoritatively
*751
interpreted a statute because the legislature remains free to alter its construction."
Progressive N. Ins. Co. v. Romanshek
,
III. ANALYSIS
A. Statutory Interpretation
¶ 12 We begin our analysis with a review of the language of the statutes.
State ex rel. Kalal v. Circuit Court for Dane Cty.
,
¶ 13 Context and structure of a statute are important to the meaning of the statute. Id. , ¶ 46. "Therefore, statutory language is interpreted in the context in *204 which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id. Moreover, the "[s]tatutory language is read where possible to give *752 reasonable effect to every word, in order to avoid surplusage." Id. "A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes-that is, from its context or the structure of the statute as a coherent whole." Id. , ¶ 49.
¶ 14 "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Id. , ¶ 46. If statutory language is unambiguous, we do not need to consult extrinsic sources of interpretation. Id. "Statutory interpretation involves the ascertainment of meaning, not a search for ambiguity." Id. , ¶ 47.
1. OWI-related statutes
¶ 15 Wisconsin Statutes govern OWI-related offenses. Unique to Wisconsin, a first offense is deemed to be a civil, not a criminal offense.
8
The legislature has instituted criminal penalties for repeat offenses.
See
¶ 16 Wisconsin Stat. § 346.63(1) states "No person may drive or operate a motor vehicle while ... [u]nder the influence of an intoxicant," § 346.63(1)(a), or with a "prohibited alcohol concentration," § 346.63(1)(b). Convictions of both, as was the case here, count as only one conviction for purposes of
*205
*754
¶ 17 The OWI/PAC penalty enhancement statute at issue here provides for increased minimum and maximum potential penalties for defendants convicted of OWIs based upon a delineated list of prior "suspensions, revocations, and other convictions."
¶ 18 Wisconsin Stat. § 340.01 defines "words and phrases" that appear in Chapter 346. Section 340.01(9r) defines "Conviction" as "an unvacated adjudication of guilt." Hence, we next consider whether an expunged "conviction" is an "unvacated adjudication of guilt."
2. Expunction and vacatur
¶ 19 Wisconsin Stat. § 973.015, entitled "Special Disposition," governs expunction in Wisconsin and grants courts the discretionary authority to expunge an offender's conviction for a crime for which the maximum period of imprisonment is six years or less if that offender is under 25 years of age at the time the crime was committed.
11
"The court may order at the time of sentencing that the record be expunged upon
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successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition." § 973.015(1m)(a)1."Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of
expunging the record.
" § 973.015(1m)(b) (emphasis added). Thus, when expunction is ordered, the clerk of court seals the case and destroys the court records.
State v. Allen
,
¶ 20 In contrast,
the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the person as to render the judgment vulnerable to collateral attack.
§ 974.06(3)(d). Such relief, however, is designed to address such defects with respect to the conviction or the sentence imposed, not to provide a second chance or a fresh start as is intended by the Expunction Statute.
State v. Hemp
,
¶ 21 Vacatur, unlike expunction, removes the fact of conviction.
See
State v. Lamar
,
¶ 22 Vacatur invalidates the conviction itself, whereas expunction of a conviction merely deletes the evidence of the underlying conviction from court records. Expunction, unlike vacatur, does not invalidate the conviction.
¶ 23 Notably,
¶ 24 The next section of the Expunction Statute provides additional confirmation that the legislature deemed vacatur and expunction to be distinct court actions. Wisconsin Stat. § 973.015(2m)
12
states the court "may ... vacate the conviction ...
or
may order
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that the record of the violation ... be expunged (emphasis added)." The legislature's use of the terms "vacate the conviction" or "order the record ... be expunged" in the disjunctive demonstrates the legislature's decision to distinguish vacatur from expunction as two alternative, independent options.
See
Milewski v. Town of Dover
,
¶ 25 In sum, while the expunction of court records of a conviction is intended to benefit a young offender, one of the benefits is not that the underlying conviction is vacated. Therefore, under a plain meaning *758 analysis, a conviction, even though expunged, remains "an unvacated adjudication of guilt" and thus, must be counted for *207 purposes of supporting a prior conviction in OWI-related offenses.
3. State v. Leitner
¶ 26 We now examine whether our statutory analysis is at odds with
State v. Leitner
,
¶ 27 In
Leitner
, this court determined that the "
court records
of expunged convictions cannot be considered by sentencing courts," including for "repeater sentence enhancement."
¶ 28 However, Leitner explicitly contemplated use of other non-court records of prior convictions whose court records had subsequently been expunged for repeater sentence enhancement. Id. , ¶ 40. Specifically, the court stated:
Furthermore, district attorneys and law enforcement agencies have significant ongoing interests in maintaining case information, even when a court record of a conviction has been expunged underWis. Stat. § 973.015 . Case information may assist in identifying *759 suspects, determining whether a suspect might present a threat to officer safety, investigating and solving similar crimes, anticipating and disrupting future criminal actions, informing decisions about arrest or pressing charges, making decisions about bail and pre-trial release, making decisions about repeater charges, and making recommendations about sentencing .
¶ 29 Further, this court has since clarified that Leitner 's holding does not stand for the proposition that a DOT record of conviction is precluded from use. In Allen , this court stated:
As discussed in Leitner , expunction requires the destruction of the court record of conviction. It is the court record, with all of its contents, which cannot be considered at a subsequent sentencing. The facts underlying an expunged record of conviction, if obtained from a source other than a court record, may be considered at sentencing.
Allen
,
¶ 30 As a result,
Leitner
does not lend support to Braunschweig's cause. A certified DOT record is a "source other than a court record" that may be considered to prove the predicate expunged offense. While
*760 It is instead additional support for the fact *208 that the DOT was required to keep such records regardless of their expunction.
¶ 31 In sum, the plain meaning of the statutes and our prior precedent both dictate that a certified DOT record which contains an expunged conviction can establish a predicate offense for purposes of OWI-related offenses.
B. Prior Convictions Must Be Proven By A Preponderance Of The Evidence.
¶ 32 We last turn to the question of the burden of proof the State must meet in proving a prior conviction in a second offense OWI-related case. Wisconsin Stat. § 346.65 does not provide a standard of proof for the penalties assigned.
See
Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc.
,
¶ 33 Almost 40 years ago in
McAllister
, this court concluded that the State may prove prior convictions through "certified copies of conviction or other competent proof" when proof of a prior is not an element of the offense.
*762 ¶ 34 Wisconsin's statutes for OWI-related offenses impose increased penalties for repeat offenders. Competent proof of the prior conviction primarily concerns sentencing as it impacts the penalty that can be imposed and here, is not an element of the offense to be proven. The elements of a second offense OWI are:
*209 1. The defendant (drove) (operated) a motor vehicle on a highway. ...
2. The defendant was under the influence of an intoxicant at the time the defendant (drove) (operated) a motor vehicle.
Wis. JI-Criminal 2669, at 2 (2015);
see
1. The defendant (drove) (operated) a motor vehicle on a highway.
2. The defendant had a prohibited alcohol concentration at the time the defendant (drove) (operated) a motor vehicle.
"Prohibited alcohol concentration" means .08 grams or more of alcohol in 210 liters of the person's breath.
Wis. JI-Criminal 2669, at 3 (2015);
see
§ 346.63(1)(b) ;
see also
¶ 35 In McAllister , this court stated:
The legislative directive concerning the law of repeater and penalty enhancers is clear and has been upheld by this court. The application and impact of such provisions has been repeatedly defined. Consistent with this development of the law, we hold that the *763 fact of a prior violation, civil or criminal, is not an element of the crime of [OWI] either in the ordinary sense of the meaning of the word element, i.e., the incidents of conduct giving rise to the prosecution, or in the constitutional sense.
McAllister
,
¶ 36 Braunschweig asserts that the law has changed significantly since
McAllister
, so to undermine its conclusions. As support, he refers to the creation of the PAC charge under
¶ 37 The United States Supreme Court has provided guidance with regard to what burden of proof satisfies competent proof of a predicate conviction. In this case, the prior offense pertains in large part to the penalty at sentencing. The Supreme Court has "held that application of the preponderance standard at sentencing generally satisfies due process."
United States v. Watts
,
¶ 38 In line with the United States Supreme Court, numerous federal circuits have consistently applied a preponderance of the evidence standard at sentencing.
See, e.g.
,
United States v. Lacouture
,
¶ 39 We likewise conclude that the State must prove this prior conviction by a preponderance of the evidence. Here, unlike some PAC charges, the prior OWI conviction is not an element of the charged offenses and need not be proven beyond a reasonable doubt. 19
*766 ¶ 40 In sum, the State must prove this prior conviction by a preponderance of the evidence which can be satisfied with a certified DOT record.
*211 IV. CONCLUSION
¶ 41 The court is presented with two issues. First, we consider whether a prior expunged OWI conviction constitutes a prior conviction under
¶ 42 Second, we consider the State's burden of proving the prior OWI conviction in second offense OWI-related offenses. We conclude that the State must prove this prior OWI conviction, which is not here an element of the offense charged, by a preponderance of the evidence. Thus, we affirm the court of appeals.
By the Court. -The decision of the court of appeals is affirmed.
This appeal was decided by one judge pursuant to
The Honorable Randy R. Koschnick presided.
Braunschweig was convicted of both an OWI count and a prohibited alcohol concentration ("PAC") count, each as a second offense, and the court imposed sentence on only the OWI second offense count pursuant to
"OWI-related offenses" have been referred to as "drunk driving" offenses in prior opinions by this court.
See, e.g.
,
State v. Kozel
,
Wisconsin Stat. § 346.63 (2011-12), "Operating under influence of intoxicant or other drug," in relevant part, provided:
(2) (a) It is unlawful for any person to cause injury to another person by the operation of a vehicle while:
1. Under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving.
§ 346.63(2)(a)1. (2011-12).
Wisconsin Stat. § 973.015 provides, in relevant part:
[W]hen a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition. This subsection does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s. 343.23(2)(a).
§ 973.015(1m)(a)1. In 2013 the legislature revised
Wisconsin Stat. § 346.65(2)(am) makes the first offense for OWI or PAC a civil offense, but OWI and PAC offenses become criminal as second offenses.
See
The Wisconsin Statutes also enhance penalties for other reasons not pertinent to our analysis.
See, e.g.
,
Compare
Other statutes may use the term expunction but are not pertinent to our analysis.
See, e.g.
,
This statute is limited in its application to "a victim of trafficking for the purposes of a commercial sex act .... Wis. Stat. 973.015(2m)(a)"
Wisconsin Stat. §§ 343.23 and 343.24 designate some uses of the records. For instance, § 343.23, in relevant part, provides:
The information specified in pars. (a) and (am) must be filed by the department so that the complete operator's record is available for the use of the secretary in determining whether operating privileges of such person shall be suspended, revoked, canceled, or withheld, or the person disqualified, in the interest of public safety.
§ 343.23(2)(b). Another example is in § 343.24, which provides:
The department shall upon request furnish any person an abstract of the operating record of any person. The abstract shall be certified if certification is requested. Such abstract is not admissible in evidence in any action for damages arising out of a motor vehicle accident.
§ 343.24(1).
The holding that preponderance of the evidence is the burden of proof applies only when the prior convictions are not an element of the offense, such as in second offense OWI cases, but not so when the prior convictions become an element of the offense as in some PAC cases where the prior convictions lower the "[p]rohibited alcohol concentration."
See
"This court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law."
State v. Luedtke
,
We recognize that stare decisis is a " 'principle of policy' rather than 'an inexorable command.' " Hohn v. United States ,524 U.S. 236 , 251,118 S.Ct. 1969 ,141 L.Ed.2d 242 (1998) (quoting Payne v. Tennessee ,501 U.S. 808 , 828,111 S.Ct. 2597 ,115 L.Ed.2d 720 (1991) ). One circumstance that can "satisfy the demanding standards for departing from precedent" is "changes or developments in the law [that] have undermined the rationale behind a decision." Johnson Controls ,264 Wis. 2d 60 , ¶ 98,665 N.W.2d 257 .
Wisconsin Stat. § 346.63, in relevant part, provides that "[n]o person may drive or operate a motor vehicle while ... [t]he person has a prohibited alcohol concentration." § 346.63(1)(b).
In this case, increased potential punishment because of this expunged prior does not transform the predicate offense into an element as "[b]oth the certainty that procedural safeguards attached to any 'fact' of prior conviction, and the reality that [Braunschweig] did not challenge the accuracy of that 'fact' in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a 'fact' increasing punishment."
See
Apprendi v. New Jersey
,
As noted, this standard does not apply when the prior conviction defines part of the offense, as in some PAC circumstances. Given the Wisconsin Statutes regarding PAC cases, courts may nonetheless decide to make a record of whether the burden of proof meets the beyond-a-reasonable doubt standard, although it is not required as the preponderance-of-the evidence standard applies.
Our conclusion is not in conflict with
State v. Van Riper
,
Reference
- Full Case Name
- STATE of Wisconsin, Plaintiff-Respondent, v. Justin A. BRAUNSCHWEIG, Defendant-Appellant-Petitioner.
- Cited By
- 15 cases
- Status
- Published